| Page Range | 29203-29527 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 29527 - Continuation of the National Emergency With Respect to the Stabilization of Iraq | |
| 80 FR 29525 - 50th Anniversary of Head Start | |
| 80 FR 29379 - Culturally Significant Objects Imported for Exhibition Determinations: “Power and Pathos: Bronze Sculpture of the Hellenistic World” and “Pergamon and the Art of the Hellenistic Kingdom” Exhibitions | |
| 80 FR 29380 - Culturally Significant Objects Imported for Exhibition Determinations: “Gustave Caillebotte: The Painter's Eye” | |
| 80 FR 29381 - Culturally Significant Objects Imported for Exhibition Determinations: “Van Gogh and Nature” Exhibition | |
| 80 FR 29322 - Announcing the Award of a Single-Source Cooperative Agreement to the American Public Human Services Association for the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC) in Washington, DC | |
| 80 FR 29390 - Tri-City Railroad Company-Petition for Declaratory Order | |
| 80 FR 29299 - Reporting for Calendar Year 2014 on Offsets Agreements Related to Sales of Defense Articles or Defense Services to Foreign Countries or Foreign Firms | |
| 80 FR 29317 - Sunshine Act Notice | |
| 80 FR 29203 - Federal Employees Health Benefits Program; Subrogation and Reimbursement Recovery | |
| 80 FR 29348 - Emergency Planning Exemption Requests for Decommissioning Nuclear Power Plants | |
| 80 FR 29335 - Record of Decision for General Management Plan, Golden Gate National Recreation Area, California | |
| 80 FR 29382 - Notice of Opportunity for Public Comment on Surplus Property Release at Lewistown Municipal Airport, in Lewistown, MT | |
| 80 FR 29378 - West Virginia Disaster #WV-00038 | |
| 80 FR 29389 - LEWPAC, LLC-Lease and Operation Exemption-Mount Vernon Terminal Railway LLC | |
| 80 FR 29379 - Alabama Disaster #AL-00057 | |
| 80 FR 29378 - Administrator's Line of Succession Designation, No. 1-A, Revision 35 | |
| 80 FR 29331 - Notice of Intent To Amend the Resource Management Plan for the California Coastal Monument for the Inclusion of the Point Arena-Stornetta Unit and Prepare an Associated Environmental Assessment | |
| 80 FR 29332 - 2015 Second Call for Nominations for Resource Advisory Councils | |
| 80 FR 29220 - Drawbridge Operation Regulation; St. Croix River, Stillwater, MN | |
| 80 FR 29250 - Approval and Promulgation of Implementation Plans and Designation of Areas; North Carolina; Redesignation of the Charlotte-Rock Hill, 2008 8-Hour Ozone Nonattainment Area to Attainment | |
| 80 FR 29230 - Approval and Promulgation of Implementation Plans; North Carolina: Non-Interference Demonstration for Federal Low-Reid Vapor Pressure Requirement for the Gaston and Mecklenburg Counties in North Carolina | |
| 80 FR 29237 - Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Tennessee; Redesignation of the Knoxville 2008 8-Hour Ozone Nonattainment Area to Attainment | |
| 80 FR 29490 - Notice of Proposed Order and Request for Comment on an Application for an Exemptive Order From Southwest Power Pool, Inc. From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in Section 4(c)(6) of the Act | |
| 80 FR 29314 - Proposed Collection; Comment Request | |
| 80 FR 29300 - Certain Lined Paper Products From India: Notice of Court Decision Not in Harmony With Final Results of Antidumping Duty Administrative Review and Notice of Amended Final Results of Antidumping Duty Administrative Review; 2010-2011 | |
| 80 FR 29320 - Receipt of Test Data Under the Toxic Substances Control Act | |
| 80 FR 29312 - Privacy Act of 1974; System of Records | |
| 80 FR 29380 - Exchange Visitor Program-Establishment of a Private Sector U.S.-Mexico Intern Program | |
| 80 FR 29383 - Notice of Intent to Grant a Buy America Waiver to the Long Island Rail Road for the Purchase of Seven U.S.-Made Turnouts Containing Four Non-Domestic Components | |
| 80 FR 29227 - Schedules of Controlled Substances: Temporary Placement of Acetyl Fentanyl into Schedule I | |
| 80 FR 29336 - Bulk Manufacturer of Controlled Substances Application: PCAS-NANOSYN, LLC | |
| 80 FR 29336 - Importer of Controlled Substances Registration: Myoderm | |
| 80 FR 29338 - Importer of Controlled Substances Registration: Fisher Clinical Services, Inc. | |
| 80 FR 29337 - Importer of Controlled Substances Registration: Mylan Pharmaceuticals, Inc. | |
| 80 FR 29348 - NASA Advisory Council; Science Committee; Planetary Protection Subcommittee; Meeting | |
| 80 FR 29338 - Importer of Controlled Substances Registration: Mallinckrodt, LLC | |
| 80 FR 29315 - Privacy Act of 1974; System of Records | |
| 80 FR 29337 - Importer of Controlled Substances Registration: Noramco, Inc. | |
| 80 FR 29299 - Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection | |
| 80 FR 29296 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications | |
| 80 FR 29317 - National Board for Education Sciences; Announcement of an Open Meeting | |
| 80 FR 29321 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 80 FR 29322 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 29322 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 29286 - Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions | |
| 80 FR 29390 - R.J. Corman Railroad Company/Allentown Lines, Inc.-Abandonment Exemption-in Lehigh County, PA | |
| 80 FR 29340 - Agency Information Collection Activities; Proposed eCollection; eComments Requested; Unfair Immigration-Related Employment Practices Complaint Form | |
| 80 FR 29325 - Notice of Intent To Award a Single Source Non-competing Continuation Cooperative Agreement for Eight Grant Projects Under the “Part A: The Enhanced ADRC Options Counseling Program” Funded in 2012 | |
| 80 FR 29326 - Applications for New Awards; National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR)-Rehabilitation Research and Training Centers | |
| 80 FR 29339 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court | |
| 80 FR 29338 - Agency Information Collection Activities: Proposed eCollection eComments Requested; Identification of Imported Explosive Materials | |
| 80 FR 29323 - Final Priority. National Institute on Disability, Independent Living, and Rehabilitation Research-Rehabilitation Research and Training Centers | |
| 80 FR 29391 - Submission for OMB Review; Comment Request | |
| 80 FR 29334 - Proposed Information Collection; Comment Request; Cape Lookout National Seashore Cultural Resource Values and Vulnerabilities Assessment | |
| 80 FR 29381 - Environmental Impact Statement for the Disposal of Coal Combustion Residuals From the Bull Run Fossil Plant | |
| 80 FR 29336 - Certain Snowmobiles With Engines Having Exhaust Temperature-Controlled Engine Technology and Components Thereof; Termination of an Investigation on the Basis of Withdrawal of the Complaint | |
| 80 FR 29333 - Notice of Public Meeting for the John Day-Snake Resource Advisory Council | |
| 80 FR 29319 - Combined Notice of Filings #1 | |
| 80 FR 29364 - Self-Regulatory Organizations; The Options Clearing Corporation; Order Approving Proposed Rule Change To Establish Procedures Regarding the Monthly Resizing of Its Clearing Fund and the Addition of Financial Resources | |
| 80 FR 29367 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of No Objection to an Advance Notice, as Modified by Amendment No. 1 and Amendment No. 2, To Establish Procedures Regarding the Monthly Resizing of Its Clearing Fund and the Addition of Financial Resources | |
| 80 FR 29350 - Nonmetallic Thermal Insulation for Austenitic Stainless Steel | |
| 80 FR 29391 - Notice of Intent To Release a Request for Proposal (RFP) for Facility Management Services; for Immediate Release | |
| 80 FR 29344 - The Asbestos in Shipyards Standard; Extension of the Office of Management and Budget's Approval of Information Collection (Paperwork) Requirements | |
| 80 FR 29346 - The Cadmium in Construction Standard; Extension of the Office of Management and Budget's (OMB) Approval of Collection of Information (Paperwork) Requirements | |
| 80 FR 29342 - Curtis-Straus LLC: Application for Expansion of Recognition | |
| 80 FR 29220 - International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Effort Limits in Purse Seine Fisheries for 2015 | |
| 80 FR 29376 - Submission for OMB Review; Comment Request | |
| 80 FR 29359 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of the Shares of the PowerShares DB Optimum Yield Diversified Commodity Strategy Portfolio, PowerShares Agriculture Commodity Strategy Portfolio, PowerShares Precious Metals Commodity Strategy Portfolio, PowerShares Energy Commodity Strategy Portfolio, PowerShares Base Metals Commodity Strategy Portfolio and PowerShares Bloomberg Commodity Strategy Portfolio, Each a Series of PowerShares Actively Managed Exchange-Traded Commodity Fund Trust | |
| 80 FR 29358 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees | |
| 80 FR 29357 - Self-Regulatory Organizations; ICE Clear Credit LLC; Order Approving Proposed Rule Change Related to Settlement Finality | |
| 80 FR 29352 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing of a Proposed Rule Change to the Government Securities Division Rules in Connection With the Extension of the GCF Repo Service Pilot Program | |
| 80 FR 29370 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change Regarding NASDAQ Last Sale Plus | |
| 80 FR 29382 - WTO Dispute Settlement Proceeding Regarding Certain Measures Providing Export-Contingent Subsidies to Enterprises in Several Industrial Sectors in China; Correction | |
| 80 FR 29302 - Request for Information Regarding Student Loan Servicing | |
| 80 FR 29330 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 80 FR 29351 - New Postal Product | |
| 80 FR 29352 - New Postal Product | |
| 80 FR 29345 - Preparations for the 29th Session of the UN Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS) | |
| 80 FR 29318 - Announcement of an Open Public Meeting | |
| 80 FR 29205 - Special Conditions: Cirrus Design Corporation Model SF50 airplane; Full Authority Digital Engine Control (FADEC) System; Withdrawal | |
| 80 FR 29301 - Mid-Atlantic Fishery Management Council (MAFMC); Fisheries of the Northeastern United States; Scoping Process | |
| 80 FR 29331 - Eunice Kennedy Shriver National Institute of Child Health and Human Development Amended; Notice of Meeting | |
| 80 FR 29341 - Marine Terminals and Longshoring Standards; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) Requirements | |
| 80 FR 29208 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 29263 - Pipeline Safety: Plastic Pipe Rule | |
| 80 FR 29209 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 29217 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 29211 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 80 FR 29226 - Proposed Amendment of Class E Airspace; Tekamah, Nebraska | |
| 80 FR 29277 - Refuge-Specific Regulations; Public Use; Kenai National Wildlife Refuge | |
| 80 FR 29384 - Policy Announcement; Merchant Marine Awards and Flags Program | |
| 80 FR 29224 - Airworthiness Directives; Turbomeca S.A. Turboshaft Engines | |
| 80 FR 29205 - Airworthiness Directives; Airbus Helicopters (Previously Eurocopter France) Helicopters | |
| 80 FR 29388 - Hazardous Materials: Actions on Special Permit Applications | |
| 80 FR 29387 - Hazardous Materials: Delayed Applications | |
| 80 FR 29458 - Federal Motor Vehicle Safety Standards; Motorcycle Helmets | |
| 80 FR 29394 - Endangered and Threatened Wildlife and Plants; Removal of the Louisiana Black Bear From the Federal List of Endangered and Threatened Wildlife and Removal of Similarity-of-Appearance Protections for the American Black Bear | |
| 80 FR 29432 - Wassenaar Arrangement 2014 Plenary Agreements Implementation and Country Policy Amendments |
National Agricultural Statistics Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Children and Families Administration
Community Living Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Land Management Bureau
National Park Service
Drug Enforcement Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Railroad Administration
Maritime Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
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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Office of Personnel Management.
Final rule.
The United States Office of Personnel Management (OPM) is issuing a final rule to amend the Federal Employees Health Benefits (FEHB) Program regulations to reaffirm the conditional nature of FEHB Program benefits and benefit payments under the plan's coverage as subject to a carrier's entitlement to subrogation and reimbursement recovery, and therefore, that such entitlement falls within the preemptive scope of the FEHA Act. FEHB contracts and brochures must include, and in practice already include, a provision incorporating the carrier's subrogation and reimbursement rights, and FEHB plan brochures must contain an explanation of the carrier's subrogation and reimbursement policy.
This final rule is effective June 22, 2015.
Marguerite Martel, Senior Policy Analyst at (202) 606-0004.
The FEHB Act, as codified at 5 U.S.C. 8902(m)(1), provides: “The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.” This final regulation reaffirms that a covered individual's entitlement to FEHB benefits and benefit payments is conditioned upon, and limited by, a carrier's entitlement to subrogation and reimbursement recoveries pursuant to a subrogation or reimbursement clause in the FEHB contract. This final regulation also reaffirms that a FEHB carrier's rights and responsibilities pertaining to subrogation and reimbursement relate to the nature, provision and extent of coverage or benefits and benefit payments provided under title 5, United States Code Chapter 89, and therefore are effective notwithstanding any state or local law or regulation relating to health insurance or plans. Some state courts have interpreted ambiguity in Section 8902(m)(1) to reach a contrary result and thereby to allow state laws to prevent or limit subrogation or reimbursement rights under FEHB contracts. In this final rule, OPM is exercising its rulemaking authority under 5 U.S.C. 8913 to ensure that carriers enjoy the full subrogation and reimbursement rights provided for under their contracts.
The interpretation of Section 8902(m)(1) promulgated herein comports with longstanding Federal policy and furthers Congress's goals of reducing health care costs and enabling uniform, nationwide application of FEHB contracts. The FEHB program insures approximately 8.2 million federal employees, annuitants, and their families, a significant proportion of whom are covered through nationwide fee-for-service plans with uniform rates. The government pays on average approximately 70% of Federal employees' plan premiums. 5 U.S.C. 8906(b), (f). The government's share of FEHB premiums in 2014 was approximately $33 billion, a figure that tends to increase each year. OPM estimates that FEHB carriers were reimbursed by approximately $126 million in subrogation recoveries in that year. Subrogation recoveries translate to premium cost savings for the federal government and FEHB enrollees.
OPM proposed this amendment in a notice of proposed rulemaking on January 7, 2015 (80 FR 931). The proposed rule had a 30 day comment period during which OPM received 3 comments.
Responses to comments on the proposed rule:
OPM received comments from an association of FEHB carriers, a trade association serving subrogation and recovery professionals, and a provider of subrogation and recovery services. The comments all expressed support for the regulation and suggested some changes to clarify the language in the proposed rule.
All commenters suggested edits to the proposed definitions of “subrogation” and “reimbursement” at 5 CFR 890.101 to more completely reflect the universe of FEHB Program plan recoveries. All three commenters expressed concern with the reference to “a responsible third party” in the definitions, indicating that the use of this phrase has been interpreted to foreclose “first party” claims for subrogation and recoveries, such as uninsured and underinsured motorist coverage, and recommended adding other insurance including workers' compensation insurance, to the definition to be consistent with entitlements listed in the proposed § 890.106(c)(2) and (f). OPM agrees that the definitions of subrogation and reimbursement should include first party claims. In addition, commenters noted that § 890.106(b) and (f) should be updated to reflect this change. The definitions at § 890.101 and other corresponding sections have been updated accordingly as necessary.
The commenters also suggested additional specific changes to the proposed definition of “reimbursement.” Two of the commenters noted that the definition of reimbursement should address the situation of both illness and injury. OPM has revised the definition of reimbursement to accept this change. One commenter suggested that the final rule clarify that the right of reimbursement is cumulative with and not exclusive of the right of subrogation. OPM has incorporated this clarification. Two commenters suggested that the definition should reflect that a covered individual need not have actually received a recovery payment so long as the covered individual is entitled to receive a payment. OPM does not agree that the right of reimbursement is sufficiently broad to require an individual to reimburse the carrier in a circumstance where the individual has not actually received a recovery, and rejects this change. One commenter indicated that the right of reimbursement is specific to a recovery from an individual who has received a
One commenter suggested that § 890.106(b) be amended to align the regulation and FEHB carrier contract requirements. OPM has revised this section to refer to contractual requirements.
One commenter noted that § 890.106(f) should be clarified to ensure that the carrier has a subrogation right to recover directly from a responsible insurer all amounts available to or on behalf of the covered individual. We have clarified the provision accordingly.
Two commenters noted that proposed § 890.106(b) and (h) did not clearly reflect OPM's intention for this regulation to apply to existing contracts. We agree and are slightly revising the language of paragraphs (b) and (h) to be clearer. Paragraph (h) formalizes OPM's longstanding interpretation of what Section 8902(m)(1) has meant since Congress enacted it in 1978. This interpretation applies to all FEHBA contracts. Paragraph (b)(1) in the final rule likewise formalizes OPM's longstanding interpretation of subrogation and reimbursement clauses in carrier contracts as constituting a condition of and a limitation on the nature of benefits or benefits payments and on the provision of benefit payments. See Carrier Letter 2012-18. FEHBA contracts that contain subrogation and reimbursement clauses condition benefits and benefit payments on giving the carrier a right to pursue subrogation and reimbursement and therefore are directly related to benefits, benefit payments, and coverage within the meaning of Section 8902(m)(1). The interpretations in paragraphs (b)(1) and (h) together clarify and ensure that carriers enjoy full subrogation and reimbursement rights notwithstanding any state law to the contrary, and they apply in any pending or future case.
To clarify further the relationship among subrogation, reimbursement, benefits, and coverage, we are also in paragraph (b)(2) requiring carrier contracts that contain subrogation and reimbursement clauses to contain language specifying that benefits and benefit payments are extended to a covered individual on the condition that the carrier may pursue and receive subrogation and reimbursement. This substantive requirement, unlike the interpretation discussed above, will govern any benefit payment made under any carrier contract entered into after this regulation goes into effect.
OPM is issuing this final rule with changes to §§ 890.101(a) and 890.106(b) and (f) as described above.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation because the regulation only affects health insurance benefits of Federal employees and annuitants. Executive Order 12866.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule restates existing rights, roles and responsibilities of State, local, or tribal governments.
Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.
5 U.S.C. 8913. Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.
(a) * * *
(a) All health benefit plan contracts shall provide that the Federal Employees Health Benefits (FEHB) carrier is entitled to pursue subrogation and reimbursement recoveries, and shall have a policy to pursue such recoveries in accordance with the terms of this section.
(b)(1) Any FEHB carriers' right to pursue and receive subrogation and reimbursement recoveries constitutes a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's coverage.
(2) Any health benefits plan contract that contains a subrogation or reimbursement clause shall provide that benefits and benefit payments are extended to a covered individual on the condition that the FEHB carrier may pursue and receive subrogation and reimbursement recoveries pursuant to the contract.
(c) Contracts shall provide that the FEHB carriers' rights to pursue and receive subrogation or reimbursement recoveries arise upon the occurrence of the following:
(1) The covered individual has received benefits or benefit payments as a result of an illness or injury; and
(2) The covered individual has accrued a right of action against a third party for causing that illness or injury; or has received a judgment, settlement or other recovery on the basis of that illness or injury; or is entitled to receive compensation or recovery on the basis of the illness or injury, including from
(d) A FEHB carrier's exercise of its right to pursue and receive subrogation or reimbursement recoveries does not give rise to a claim within the meaning of 5 CFR 890.101 and is therefore not subject to the disputed claims process set forth at 5 CFR 890.105.
(e) Any subrogation or reimbursement recovery on the part of a FEHB carrier shall be effectuated against the recovery first (before any of the rights of any other parties are effectuated) and is not impacted by how the judgment, settlement, or other recovery is characterized, designated, or apportioned.
(f) Pursuant to a subrogation or reimbursement clause, the FEHB carrier may recover directly from any party that may be liable, or from the covered individual, or from any applicable insurance policy, or a workers' compensation program or insurance policy, all amounts available to or received by or on behalf of the covered individual by judgment, settlement, or other recovery, to the extent of the amount of benefits that have been paid or provided by the carrier.
(g) Any contract must contain a provision incorporating the carrier's subrogation and reimbursement rights as a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's coverage. The corresponding health benefits plan brochure must contain an explanation of the carrier's subrogation and reimbursement policy.
(h) A carrier's rights and responsibilities pertaining to subrogation and reimbursement under any FEHB contract relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning of 5 U.S.C. 8902(m)(1). These rights and responsibilities are therefore effective notwithstanding any state or local law, or any regulation issued thereunder, which relates to health insurance or plans.
Federal Aviation Administration (FAA), DOT.
Final special conditions; withdrawal.
The FAA is withdrawing a previously published document granting special conditions for the Cirrus Design Corporation model SF50 airplane. We are withdrawing Special Condition No. 23-246-SC through mutual agreement with Cirrus Design Corporation.
Effective May 21, 2015, the special condition published on April 20, 2010 (75 FR 20518) is withdrawn.
Jeff Pretz, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Room 301, Kansas City, MO 64106; telephone (816) 329-3239; facsimile (816) 329-4090, email
On September 9, 2008, Cirrus Design Corporation applied for a type certificate for their new model SF50 aircraft. Under the provisions of 14 CFR part 21, § 21.17, Cirrus Design Corporation must show that the model SF50 meets the applicable provisions of part 23, as amended by amendments 23-1 through 23-59.
On April 20, 2010, the FAA published Special Condition No. 23-246-SC for the Cirrus Design Corporation model SF50 airplane. The Cirrus SF50 is a low-wing, five-plus-two-place (2 children), single-engine turbofan-powered aircraft. The airplane engine is controlled by an Electronic Engine Control (EEC), also known as a Full Authority Digital Engine Control (FADEC).
On December 11, 2012 Cirrus Design Corporation elected to adjust the certification basis of the SF50 to include 14 CFR part 23 through amendment 62. Special Condition No. 23-246-SC is therefore being withdrawn. It no longer reflects the appropriate part 23 amendment level of the aircraft and the basic Special Condition requirement for EEC equipped aircraft has been revised.
The FAA is withdrawing Special Condition No. 23-246-SC because Cirrus Design Corporation elected to revise the model SF50 certification basis to amendment 23-62.
The authority citation for this Special Condition withdrawal is 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19.
Withdrawal of this special condition does not preclude the FAA from issuing another document on the subject matter in the future or committing the agency to any future course of action.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for Airbus Helicopters (previously Eurocopter France) Model AS365N3, EC155B, and EC155B1 helicopters with an external life raft in the footsteps with certain part-numbered junction units. This AD requires inspecting the junction units of the external life raft deployment system for corrosion, removing any corrosion, and performing certain measurements to determine whether the junction unit must be replaced. This AD is prompted by failure of a life raft deployment test and corrosion damage inside the left-hand junction unit. These actions are intended to prevent failure of an external life raft to deploy preventing evacuation of passengers during an emergency.
This AD becomes effective June 5, 2015.
The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of June 5, 2015.
We must receive comments on this AD by July 20, 2015.
You may send comments by any of the following methods:
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You may examine the AD docket on the Internet at
For service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
Martin R. Crane, Aviation Safety Engineer, Regulations Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222-5112; email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.
We are adopting a new AD for Airbus Helicopters (previously Eurocopter France) Model AS365N3, EC155B, and EC155B1 helicopters with an external life raft in the footsteps with a junction unit, manufacturer part number (P/N) 200197 or P/N 200188 (Airbus Helicopters P/N 704A341302.48 or P/N 704A341302.30), installed. This AD requires inspecting the external life raft deployment system junction unit for corrosion, removing any corrosion, and measuring the clearance between the internal and external pulleys and the junction unit cover. If the clearance exceeds a certain threshold, this AD requires replacing the junction unit. This AD is prompted by failure of the external life raft deployment test and corrosion damage inside the left-hand junction unit, which blocked the deployment handle. These actions are intended to prevent corrosion damage inside a junction unit, which can prevent a deployment handle from functioning correctly and cause failure of an external life raft to deploy, preventing evacuation of passengers during an emergency.
EASA, which is the Technical Agent for the Member States of the European Union, has issued AD No. 2014-0214, dated September 24, 2014, to correct an unsafe condition for Airbus Helicopters Model AS365N3, EC155B, and EC155B1 helicopters with external life rafts in the footsteps with certain part-numbered junction units installed. EASA advises that failure of the external life raft deployment test was reported by a Model AS365 helicopter operator when the affected external life raft underwent a scheduled maintenance. The failure occurred during an attempt to release the life raft by pulling the left-hand internal deployment handle. Subsequent investigations revealed corrosion damage inside the left-hand junction unit, which blocked the deployment handle. The EASA AD requires an inspection of the tensile loads during a functional test of the life-raft system, the junction unit cover for drainage holes, and the junction unit cover for corrosion. The EASA AD also requires measuring operational clearance of the right-hand and the left-hand junction units of the external life raft deployment system and, depending on the findings, corrective action and reporting the results to Airbus.
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by the EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
Airbus Helicopters issued Alert Service Bulletin (ASB) No. EC155-05A027 for the Model EC155B and B1 helicopter and ASB No. AS365-05.00.67 for the Model AS365N3 helicopter. Both ASBs are Revision 1 and dated September 1, 2014. The ASBs specify checking the tensile load during a functional test of the life-raft system, checking that the drainage hole blank is correctly positioned, inspecting the junction units for corrosion, and measuring the operational clearance between the junction unit pulleys and the cover. If necessary, the ASBs call for removing the corrosion from the cover surface or pulleys and replacing the junction unit.
The ASBs state that the life raft deployment test on a Model AS365 helicopter failed when the left-hand internal deployment handle did not function correctly because the handle was blocked by corrosion inside the junction unit. ASB No. EC155-05A027 further states that Model EC155B and B1 helicopters are equipped with similar junction units.
This service information is reasonably available because the interested parties
This AD requires, before further flight:
• Inspecting each external life raft deployment system unit for corrosion, and if there is corrosion, either removing the corrosion and applying a protective coating, primer, and paint to the surface or replacing the junction unit with an airworthy junction unit.
• Measuring the diameter of the junction unit cover and of each (internal and external) junction unit pulley for operational clearance. If the clearance is greater than 0.029 inch (0.75 mm), replacing the junction unit with an airworthy junction unit.
• Inspecting the drainage holes on the upper face and the lower surface of the junction unit cover to determine whether they are plugged. This AD requires plugging the drainage hole on the upper face if it is not plugged and removing the plug in the drainage hole on the lower surface if it is plugged.
The EASA AD requires a tensile load inspection and, depending on the results of the inspection, may allow a longer compliance time for the remaining required actions. This AD does not require the tensile load inspection and requires all required actions before further flight. The EASA AD allows the operational clearance measurements to be taken before any corrosion is removed, while this AD requires removing any corrosion before taking measurements. The EASA AD requires reporting the inspection results to the manufacturer; this AD does not.
There are no costs of compliance with this AD because there are no helicopters equipped with the life raft deployment system that is the subject of this AD.
There are no helicopters with the affected life raft deployment system; therefore, we believe it is unlikely that we will receive any adverse comments or useful information about this AD from U.S. Operators.
Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are unnecessary because there are no helicopters with the affected life raft deployment system and that good cause exists for making this amendment effective in less than 30 days.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model AS365N3, EC155B, and EC155B1 helicopters with an external life raft in the footstep installed with a junction unit, manufacturer part number (P/N) 200197 or P/N 200188 (Airbus Helicopters P/N 704A341302.48 or 704A341302.30), certificated in any category.
This AD defines the unsafe condition as corrosion damage inside a junction unit, which can prevent a deployment handle from functioning correctly. This condition could result in failure of an external life raft to deploy, preventing evacuation of passengers during an emergency.
This AD becomes effective June 5, 2015.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Before further flight:
(1) Inspect each external life raft deployment system left-hand and right-hand junction unit for corrosion in the areas shown in Figure 3 of Airbus Helicopters Alert Service Bulletin (ASB) No. EC155-05A027, Revision 1, dated September 1, 2014 (ASB No. EC155-05A027), or ASB No. AS365-05.00.67, Revision 1, dated September 1, 2014, (ASB No. AS365-05.00.67), as applicable to your helicopter model.
(2) If there is corrosion, either remove the corrosion and apply a protective coating, primer, and paint to the surface or replace the junction unit with an airworthy junction unit.
(3) Measure the diameter of the junction unit cover and of each (internal and external) junction unit pulley for operational clearance. If the clearance is greater than 0.029 inch (0.75 mm) as depicted in Figure 4 of ASB No. EC155-05A027 or Figure 5 of ASB No. AS365-05.00.67, as applicable to your helicopter model, replace the junction unit with an airworthy junction unit.
(4) Inspect the drainage hole on the upper face of the junction unit cover, and if it is unplugged, plug it.
(5) Inspect the drainage hole on the lower surface of the junction unit cover, and if it is plugged, remove the plug.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Martin R. Crane, Aviation Safety Engineer, Regulations Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222-5112; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2014-0214, dated September 24, 2014. You may view the EASA AD on the Internet at
Joint Aircraft Service Component (JASC) Code: 2564 Equipment/Furnishing.
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Airbus Helicopters Alert Service Bulletin (ASB) No. EC155-05A027, Revision 1, dated September 1, 2014.
(ii) Airbus Helicopters ASB No. AS365-05.00.67, Revision 1, dated September 1, 2014.
(3) For Airbus Helicopters service information identified in this AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 21, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at fdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 21, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 21, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 21, 2015.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective May 21, 2015. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 21, 2015.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA).
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Coast Guard, DHS.
Notice of deviation from drawbridge regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Stillwater Highway Drawbridge across the St. Croix River, mile 23.4, at Stillwater, Minnesota. The deviation is necessary due to increased vehicular traffic after a local Independence Day fireworks display. The deviation allows the bridge to be in the closed-to-navigation position to clear increased traffic congestion.
This deviation is effective from 10 p.m. to 11:30 p.m., July 4, 2015.
The docket for this deviation, [USCG-2014-0312] is available at
If you have questions on this temporary deviation, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email
The Minnesota Department of Transportation requested a temporary deviation for the Stillwater Highway Drawbridge, across the St. Croix River, mile 23.4, at Stillwater, Minnesota to remain in the closed-to-navigation position on July 4, 2015 as follows:
From 10 p.m. to 11:30 p.m. on July 4, 2015, the lift span will remain in the closed-to-navigation position.
The Stillwater Highway Drawbridge currently operates in accordance with 33 CFR 117.667(b), which states specific seasonal and commuter hours operating requirements.
There are no alternate routes for vessels transiting this section of the St. Croix River.
The Stillwater Highway Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 10.9 feet above normal pool. Navigation on the waterway consists primarily of commercial sightseeing/dinner cruise boats and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.
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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Interim rule; request for comments.
This interim rule establishes a limit for calendar year 2015 on fishing effort by U.S. purse seine vessels in the U.S. exclusive economic zone (U.S. EEZ) and on the high seas between the latitudes of 20° N. and 20° S. in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention). The limit is 1,828 fishing days. This action is necessary for the United States to implement provisions of a conservation and management measure adopted by the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission) and to satisfy the obligations of the United States under the Convention, to which it is a Contracting Party.
Effective on May 21, 2015; comments must be submitted in writing by June 5, 2015.
You may submit comments on this document, identified by NOAA-NMFS-2015-0058, and the regulatory
•
1. Go to
2. Click the “Comment Now!” icon, complete the required fields, and
3. Enter or attach your comments.
•
Copies of the RIR and the environmental assessment prepared for National Environmental Policy Act (NEPA) purposes are available at
Tom Graham, NMFS PIRO, 808-725-5032.
A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the western and central Pacific Ocean (WCPO), can be found on the WCPFC Web site at:
As a Contracting Party to the Convention and a Member of the Commission, the United States is obligated to implement the decisions of the Commission. The Western and Central Pacific Fisheries Convention Implementation Act (16 U.S.C. 6901
At its Eleventh Regular Session, in December 2014, the WCPFC adopted Conservation and Management Measure (CMM) 2014-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.” CMM 2014-01 is the most recent in a series of CMMs for the management of tropical tuna stocks under the purview of the Commission. It is a successor to CMM 2013-01, adopted in December 2013. These and other CMMs are available at:
The stated general objective of CMM 2014-01 and several of its predecessor CMMs is to ensure that the stocks of bigeye tuna (
CMM 2014-01 went into effect February 3, 2015, and is generally applicable for the 2015-2017 period. The CMM includes provisions for purse seine vessels, longline vessels, and other types of vessels that fish for HMS. The CMM's provisions for purse seine vessels include limits on the allowable number of fishing vessels, limits on the allowable level of fishing effort, restrictions on the use of fish aggregating devices, requirements to retain all bigeye tuna, yellowfin tuna, and skipjack tuna except in specific circumstances, and requirements to carry vessel observers.
The provisions of CMM 2014-01 apply on the high seas and in EEZs in the Convention Area; they do not apply in territorial seas or archipelagic waters.
Paragraphs 20-27 of CMM 2014-01 require that WCPFC members limit the amount of fishing effort by purse seine vessels in certain areas of the Convention Area between the latitudes of 20° N. and 20° S. Paragraph 23 contains the relevant provisions for the U.S. EEZ, and paragraph 25 contains the relevant provisions for U.S. fishing vessels on the high seas.
Paragraph 23 of CMM 2014-01 requires coastal members like the United States to “establish effort limits, or equivalent catch limits for purse seine fisheries within their EEZs that reflect the geographical distributions of skipjack, yellowfin, and bigeye tunas, and are consistent with the objectives for those species.” It further states, “Those coastal States that have already notified limits to the Commission shall restrict purse seine effort and/or catch within their EEZs in accordance with those limits.” The United States has regularly notified the Commission of its purse seine effort limits for the U.S. EEZ since the limits were first established in 2009 (in a final rule published August 4, 2009; 74 FR 38544). Accordingly, the applicable limit for the U.S. EEZ is the same as that implemented by NMFS since 2009, which is 558 fishing days per year. Under paragraph 23 of CMM 2014-01, this limit is applicable from 2015 through 2017.
Paragraph 25 of CMM 2014-01 requires that U.S. purse seine fishing effort on the high seas in 2015 be limited to 1,270 fishing days. It does not include limits for the years after 2015, instead stating that the Commission will review the 2015 limits in 2015 and agree on limits for later years.
This interim rule is limited to implementing CMM 2014-01's provisions on allowable levels of fishing effort by purse seine vessels on the high seas and in the U.S. EEZ in the Convention Area, and only for 2015. The CMM's other provisions would be implemented through one or more separate rules, as appropriate. NMFS is implementing the 2015 purse seine effort limits separately from other provisions of the CMM to ensure that the limits go into effect in U.S. regulations before the prescribed limits are exceeded by the fleet. Based on preliminary data available to date, NMFS expects that this could occur as early as June.
As in previous rules to implement similar Commission-mandated limits on purse seine fishing effort, this interim rule continues to implement the applicable limits for the U.S. EEZ (paragraph 23 of CMM 2014-01) and the high seas (paragraph 25 of CMM 2014-01) such that they apply to a single area, without regard to the boundary between the U.S. EEZ and the high seas. The separation in CMM 2014-01 of the high seas-related provisions from the EEZ-related provisions does not reflect differing management needs or objectives in the two respective areas, but instead reflects where, under the CMM, the management responsibility for the two areas lies. CMM 2014-01 puts the responsibility to limit fishing effort in EEZs on coastal States, while the responsibility to limit fishing effort in areas of high seas is put on flag States. In this case, the United States is both a coastal State and a flag State and will satisfy its dual responsibilities by implementing a rule that combines the two areas for the purpose of limiting purse seine fishing effort. NMFS considered both the action alternative that would combine the two areas and another alternative that would not (see the EA and the RIR for comparisons of the two alternatives). Because both alternatives would accomplish the objective of controlling fishing effort by the required amount (
The 2015 purse seine fishing effort limit for the ELAPS is formulated as in previous rules to establish limits for the ELAPS: The applicable limit for the U.S. EEZ portion of the ELAPS, 558 fishing days per year, is combined with the applicable limit for the high seas portion of the ELAPS, 1,270 fishing days per year, resulting in a combined limit of 1,828 fishing days in the ELAPS for calendar year 2015.
The meaning of “fishing day” is defined at 50 CFR 300.211; that is, any day in which a fishing vessel of the United States equipped with purse seine gear searches for fish, deploys a FAD, services a FAD, or sets a purse seine, with the exception of setting a purse seine solely for the purpose of testing or cleaning the gear and resulting in no catch.
As established in existing regulations for purse seine fishing effort limits in the ELAPS, NMFS will monitor the number of fishing days spent in the ELAPS using data submitted in logbooks and other available information. If and when NMFS determines that the limit of 1,828 fishing days is expected to be reached by a specific future date, it will publish a notice in the
This interim rule is being issued without prior notice or prior public comment because of the unusually high level of U.S. purse seine fishing effort in the ELAPS so far in 2015. To satisfy the international obligations of the United States as a Contracting Party to the Convention, NMFS must establish the applicable limits for 2015 before they are exceeded, which, based on preliminary data available to date, NMFS expects could occur as early as June of 2015. NMFS would not be able to establish the applicable limits for 2015 if it issued and considered public comments on a proposed rule prior to issuing a final rule. Nonetheless, NMFS will consider public comments on this interim rule and issue a final rule, as appropriate. NMFS is particularly interested in comments related to whether the Commission-mandated purse seine fishing effort limit for the high seas should be combined with the Commission-mandated purse seine fishing effort limit for the U.S. EEZ, as NMFS has done in this interim rule, or whether NMFS should establish separate limits for the high seas and the U.S. EEZ.
On May 12, 2015, as this interim rule was being finalized for publication, NMFS received a petition for rulemaking from Tri Marine Management Company, LLC. The company requested, first, that NOAA undertake an emergency rulemaking to implement the 2015 ELAPS limits for fishing days on the high seas, and second, that NOAA issue a rule exempting from that high seas limit any U.S.-flagged purse seine vessel that, pursuant to contract or declaration of intent, delivers or will deliver at least 50 percent of its catch to tuna processing facilities based in American Samoa. NMFS will consider and respond to the petition separately from this interim rule.
The Administrator, Pacific Islands Region, NMFS, has determined that this interim rule is consistent with the WCPFC Implementation Act and other applicable laws.
There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this action, because prior notice and the opportunity for public comment would be contrary to the public interest. This rule establishes a limit on purse seine fishing effort for 2015 that is identical to the limit in place for 2014. Affected entities have been subject to fishing effort limits in the affected area—the ELAPS—since 2009, and are expecting imminent publication of the 2015 fishing effort limits. Because the amount of U.S. purse seine fishing effort in the ELAPS so far in 2015 has been greater than in prior years, it is critical that NMFS publish the limit for 2015 as soon as possible to ensure it is not exceeded and the United States complies with its international legal obligations with respect to CMM 2014-01. Based on preliminary data available to date, NMFS expects that the applicable limit of 1,828 fishing days in the ELAPS could be reached as early as June of 2015. Delaying this rule to allow for advance notice and public comment would bring a substantial risk that more than 1,828 fishing days would be spent in the ELAPS in 2015, constituting non-compliance by the United States with respect to the purse seine fishing effort
For the reasons articulated above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this rule. As described above, NMFS must implement the purse seine fishing effort provisions of CMM 2014-01 as soon as possible, in order to ensure that the applicable effort limits are not exceeded. These fishing effort provisions are intended to reduce or otherwise control fishing pressure on bigeye tuna, yellowfin tuna, and skipjack tuna in the WCPO in order to maintain or restore those stocks at levels capable of producing maximum sustainable yield on a continuing basis. Failure to immediately implement these provisions could result in excessive fishing pressure on these stocks, in violation of international and domestic legal obligations.
NMFS has determined that this rule will be implemented in a manner consistent, to the maximum extent practicable, with the enforceable policies of the approved coastal zone management programs of American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the State of Hawaii. These determinations have been submitted for review by the responsible territorial and state agencies under section 307 of the CZMA.
This interim rule has been determined to be not significant for purposes of Executive Order 12866.
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:
16 U.S.C. 6901
(a) * * *
(1) For calendar year 2015 there is a limit of 1,828 fishing days.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Turbomeca S.A. Arrius 2F turboshaft engines with a certain part number oil pump installed. This proposed AD was prompted by cases of deterioration of the gas generator front bearing due to a link loss between the pump driver and the oil pump shaft. This proposed AD would require inspection, and if necessary, replacement before further flight of the oil pump driver assembly and/or the oil pump shaft, or the oil pump itself. We are proposing this AD to prevent link loss between the pump driver and the oil pump shaft, which could lead to an engine in-flight shutdown, forced landing, and damage to the helicopter.
We must receive comments on this proposed AD by July 20, 2015.
You may send comments by any of the following methods:
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•
•
•
For service information identified in this proposed AD, contact Turbomeca S.A., 40220 Tarnos, France; phone: 33 (0)5 59 74 40 00; telex: 570 042; fax: 33 (0)5 59 74 45 15. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
You may examine the AD docket on the Internet at
Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2015-0049, dated March 17, 2015 (Corrected May 7, 2015) (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A risk of an in-flight shutdown (IFSD) has been identified on an ARRIUS 2F engine, due to deterioration of gas generator front bearing. This could be the result of lack of lubrication, due to a link loss between pump driver and oil pump shaft.
This condition, if not detected and corrected, could lead to cases of IFSD, possibly resulting in forced landing with consequent damage to the helicopter and injury to occupants.
You may obtain further information by examining the MCAI in the AD docket on the Internet at
Turbomeca S.A. has issued Mandatory Service Bulletin (MSB) No. 319 79 4834, Version B, dated October 21, 2014. The MSB describes procedures for inspecting the oil pump driver assembly on the oil pump shaft, the pump driver splines, and the oil pump splines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require inspection, and if necessary, replacement before further flight, of the oil pump driver
We estimate that this proposed AD affects about 96 engines installed on helicopters of U.S. registry. We also estimate that it would take about two hours per product to comply with this proposed AD. The average labor rate is $85 per hour. Required parts would cost about $17,312 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $1,678,272.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 20, 2015.
None.
This AD applies to all Turbomeca S.A. Arrius 2F turboshaft engines with oil pump, part number (P/N) 0319155050, installed, except for:
(1) Engines, equipped with an oil pump, P/N 0319155050, that were overhauled in a Turbomeca repair center after January 1, 2013, and
(2) Engines with a serial number of 34776 or higher, provided that the oil pump was not replaced on that engine since the first flight of that engine on a helicopter.
This AD was prompted by cases of deterioration of the gas generator front bearing due to a link loss between the pump driver and the oil pump shaft. We are issuing this AD to prevent link loss between the pump driver and the oil pump shaft, which could lead to an engine in-flight shutdown, forced landing, and damage to the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Inspect the pump driver assembly on the oil pump shaft, the pump driver splines, and the oil pump splines, using paragraph 2.4.2, Operating Instructions, of Turbomeca S.A. Mandatory Service Bulletin (MSB) No. 319 79 4834, Version B, dated October 21, 2014, as follows:
(i) After the effective date of this AD, for engines with less than 250 engine hours (EH), since new, since last overhaul, or since last installation of an affected oil pump, whichever occurred later, inspect before exceeding 300 EH since new, since last overhaul, or since last installation of an affected oil pump, as applicable.
(ii) After the effective date of this AD, for engines with 250 EH or more, but less than 300 EH, accumulated since new, since last overhaul, or since last installation of an affected oil pump, whichever occurred later, inspect within 50 EH.
(iii) After the effective date of this AD, for engines with 300 EH or more, but less than 800 EH, accumulated since new, since last overhaul, or since last installation of an affected oil pump, whichever occurred later, inspect within 100 EH.
(iv) After the effective date of this AD, for engines with 800 EH or more, accumulated since new, since last overhaul, or since last installation of an affected oil pump, whichever occurred later, inspect during the next scheduled 500 EH inspection.
(2) If any oil pump drive assembly and/or oil pump shaft, or the oil pump itself, fails the inspection required by this AD, then before further flight, replace the failed part(s) with part(s) eligible for installation.
(3) The instruction to report inspection results and the instruction to return a compliance certificate to Turbomeca S.A. as stated in paragraph 2.4.2, Operating Instructions, of Turbomeca S.A. MSB No. 319 79 4834, Version B, dated October 21, 2014, are not required by this AD.
If you inspected the oil pump driver assembly on the oil pump shaft, the pump driver splines, and the oil pump splines, and replaced any part(s) with part(s) eligible for installation before the effective date of this AD in accordance with Turbomeca S.A. MSB No. 319 79 4834, Version A, dated November 25, 2013, you met the requirements of this AD.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2015-0049, dated March 17, 2015 (Corrected May 7, 2015), for more information. You may examine the MCAI in the AD docket on the Internet at
(3) Turbomeca S.A. MSB No. 319 79 4834, Version B, dated October 21, 2014, can be obtained from Turbomeca S.A., using the contact information in paragraph (h)(4) of this proposed AD.
(4) For service information identified in this proposed AD, contact Turbomeca, S.A., 40220 Tarnos, France; phone: 33 (0)5 59 74 40 00; telex: 570 042; fax: 33 (0)5 59 74 45 15.
(5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Tekamah Municipal Airport, Tekamah, NE. A Class E extension is no longer required due to the decommissioning of the Tekamah VHF Omni-directional radio range (VOR) facility and its associated standard instrument approach procedures (SIAPs). This would enhance the safety and management of instrument flight rules (IFR) operations at the airport.
0901 UTC. Comments must be received on or before July 6, 2015.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2015-1394/Airspace Docket No. 15-ACE-4, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783.
Roger Waite, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: (817) 321-7652.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-1394/Airspace Docket No. 15-ACE-4.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document proposes to amend FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by modifying Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius of Tekamah Municipal Airport, Tekamah, NE., reconfiguring the airspace for standard instrument approach procedures at the airport. The Tekamah VOR facility has been decommissioned and its associated SIAPs have been canceled. Controlled airspace is necessary for the safety and management of IFR operations for other SIAPs at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9Y, dated August 6, 2014 and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at the Iowa airports listed in this NPRM.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Tekamah Municipal Airport.
Drug Enforcement Administration, Department of Justice.
Notice of intent.
The Administrator of the Drug Enforcement Administration is issuing this notice of intent to temporarily schedule the synthetic opioid,
May 21, 2015.
John R. Scherbenske, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152, Telephone: (202) 598-6812.
Any final order will be published in the
The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purpose of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Under the CSA, every controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the drug or other substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of all scheduled substances is published at 21 CFR part 1308. 21 U.S.C. 812(a).
Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he or she finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).
Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.
Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of her intention to temporarily place a substance into schedule I of the CSA.
To find that placing a substance temporarily into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).
Available data and information for acetyl fentanyl indicate that this opioid substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.
Clandestinely produced substances structurally related to the schedule II opioid analgesic fentanyl were trafficked and abused on the West Coast in the late 1970s and 1980s. These clandestinely produced fentanyl-like substances were commonly known as designer drugs and recently, there has been a reemergence in the trafficking and abuse of designer drug substances including fentanyl-like substances. Alpha-methylfentanyl, the first fentanyl analogue identified in California, was placed into schedule I of the CSA in September 1981. Following the control of alpha-methylfentanyl, the DEA identified several other fentanyl analogues (3-methylthiofentanyl, acetyl-alpha-methylfentanyl, beta-hydroxy-3-methylfentanyl, alpha-methylthiofentanyl, thiofentanyl, beta-hydroxyfentanyl, para-fluorofentanyl and 3-methylfentanyl) in submissions to forensic laboratories. These substances were temporarily controlled under schedule I of the CSA after finding that they posed an imminent hazard to public safety and were subsequently permanently placed in schedule I of the CSA.
The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by State and local forensic laboratories across the country. The first laboratory submission of acetyl fentanyl was recorded in Maine in April 2013 according to NFLIS. NFLIS registered eight reports containing acetyl fentanyl in 2013 in Louisiana, Maine, and North Dakota; and 30 reports in 2014 in Florida, Illinois, Louisiana, Maine, New Jersey, Ohio, Oregon, Pennsylvania, and Virginia.
The System to Retrieve Information from Drug Evidence (STRIDE) is a database of drug exhibits sent to DEA laboratories for analysis. Exhibits from the database are from the DEA, other Federal agencies, and some local law enforcement agencies. Acetyl fentanyl was first reported to STRIDE in September 2013 from exhibits obtained through a controlled purchase in Louisiana. In October 2013, an exhibit collected from a controlled purchase of suspected oxycodone tablets in Rhode Island contained acetyl fentanyl as the primary substance. In 2014, STARLiMS (a web-based, commercial laboratory information management system that is in transition to replace STRIDE) and STRIDE reported eight additional seizures in Colorado, Florida, Georgia, and Washington.
In August 2013, the Centers for Disease Control and Prevention (CDC) published an article in its Morbidity and Mortality Weekly Report documenting a series of 14 fatalities related to acetyl fentanyl that occurred between March and May 2013. In December 2013, another fatality associated with acetyl fentanyl was reported in Rhode Island for a total of 15 fatalities. In February 2014, the North Carolina Department of Health and Human Services issued a health advisory related to acetyl fentanyl following at least three deaths related to this synthetic drug. Toxicologists at the North Carolina Office of the Chief Medical Examiner detected acetyl fentanyl in specimens associated with deaths that occurred in January 2014 in Sampson, Person, and Transylvania counties. In July and August 2014, four additional fatalities involving acetyl fentanyl were reported for a total of seven fatalities in North Carolina. Deaths involving acetyl fentanyl have also been reported in California (1), Louisiana (14), Oregon (1), and Pennsylvania (1).
A significant seizure of acetyl fentanyl occurred in April 2013 during a law enforcement investigation in Montreal, Canada. Approximately three kilograms of acetyl fentanyl in powder form and approximately 11,000 tablets containing acetyl fentanyl were seized. Given that a typical dose of acetyl fentanyl is in the microgram range, a three kilogram quantity could potentially produce millions of dosage units. In the United States, tablets that mimic pharmaceutical opioid products have been reported in multiple states, including Colorado, Florida, Georgia, Rhode Island, and Washington. Recent reports indicate that acetyl fentanyl in powder form is available over the Internet and has been imported to addresses within the United States.
Evidence also suggests that the pattern of abuse of fentanyl analogues, including acetyl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of acetyl fentanyl have been encountered both in powder and in tablet form. It is also known to have caused many fatal overdoses, in which intravenous routes of administration and histories of drug abuse are documented.
DEA is currently aware of at least 39 fatalities associated with acetyl fentanyl. These deaths have been reported in 2013 and 2014 from six states including California, Louisiana, North Carolina,
The population likely to abuse acetyl fentanyl overlaps with the populations abusing prescription opioid analgesics and heroin. This is evidenced by the routes of administration and drug use history documented in acetyl fentanyl fatal overdose cases. Because abusers of acetyl fentanyl are likely to obtain the drug through illicit sources, the identity, purity, and quantity is uncertain and inconsistent, thus posing significant adverse health risks to its abusers. This risk is particularly heightened by the fact that acetyl fentanyl is a highly potent opioid (15.7-fold more than that of morphine as tested in mice using an acetic acid writhing method). Thus small changes in the amount and purity of the substance could potentially lead to overdose and death.
Acetyl fentanyl exhibits a pharmacological profile similar to that of fentanyl and other opioid analgesic compounds and it is a potent opioid analgesic reported to be
Based on the above pharmacological data, the abuse of acetyl fentanyl at least leads to the same qualitative public health risks as heroin, fentanyl and other opioid analgesic compounds. The public health risks attendant to the abuse of heroin and opioid analgesics are well established. The abuse of opioid analgesics has resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses.
Acetyl fentanyl has been associated with numerous fatalities. At least 39 overdose deaths due to acetyl fentanyl abuse have been reported in six states in 2013 and 2014, including California, Louisiana, North Carolina, Oregon, Pennsylvania, and Rhode Island. This indicates that acetyl fentanyl poses an imminent hazard to public safety.
Based on the above summarized data and information, the continued uncontrolled manufacture, distribution, importation, exportation, and abuse of acetyl fentanyl pose an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for this substance in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for acetyl fentanyl indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through a letter dated April 7, 2015, notified the Assistant Secretary of the DEA's intention to temporarily place this substance in schedule I.
This notice of intent initiates an expedited temporary scheduling action and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h). In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein set forth the grounds for her determination that it is necessary to temporarily schedule acetyl fentanyl in schedule I of the CSA, and finds that placement of this opioid substance into schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.
Because the Administrator hereby finds that it is necessary to temporarily place this synthetic opioid into schedule I to avoid an imminent hazard to the public safety, any subsequent final order temporarily scheduling these substances will be effective on the date of publication in the
The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).
Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the
Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this
Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator will take into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.
Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.
Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).
This action 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. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, the DEA proposes to amend 21 CFR part 1308 as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(h) * * *
(24)
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the State of North Carolina's April 16, 2015, revision to its State Implementation Plan (SIP), submitted through the North Carolina Department of Environment and Natural Resources, Division of Air Quality (DAQ), in support of the State's request that EPA change the Federal Reid Vapor Pressure (RVP) requirements for Gaston and Mecklenburg Counties. This RVP-related SIP revision evaluates whether changing the Federal RVP requirements in these counties would interfere with the requirements of the Clean Air Act (CAA or Act). North Carolina's April 16, 2015, RVP-related SIP revision also updates the State's maintenance plan and the associated motor vehicle emissions budgets (MVEBs) related to its redesignation request for the North Carolina portion of the Charlotte-Gastonia-Salisbury 2008 8-hour ozone nonattainment area (Charlotte 2008 Ozone Area) to reflect the requested change in the Federal RVP requirements. EPA is also proposing to approve these updates to the maintenance plan and associated MVEBs. EPA has preliminarily determined that North Carolina's April 16, 2015, RVP-related SIP revision is consistent with the applicable provisions of the CAA.
Written comments must be received on or before June 11, 2015.
Submit your comments, identified by Docket ID Number EPA-R04-OAR-2015-0260 by one of the following methods:
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Richard Wong of the Air Regulatory Management Section, in the Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong may be reached by phone at (404) 562-8726 or via electronic mail at
This rulemaking proposes to approve North Carolina's April 16, 2015, SIP revision in support of the State's request that EPA relax the Federal RVP requirement from 7.8 pounds per square inch (psi) to 9.0 psi for gasoline sold between June 1 and September 15 of each year (
As mentioned above, North Carolina is requesting the removal of the Federal 7.8 psi RVP requirement for Gaston and Mecklenburg Counties and, as part of that request, has evaluated whether removal of this requirement would interfere with attainment or maintenance of the NAAQS. To make this demonstration, North Carolina completed a technical analysis to estimate the change in emissions that would result from a switch to 9.0 psi RVP fuel. EPA has reviewed this technical analysis and is proposing to find that North Carolina's technical demonstration supports the conclusion that the use of gasoline with an RVP of 9.0 psi in Gaston and Mecklenburg Counties will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA in the Charlotte Area.
This preamble is hereinafter organized into five parts. Section II provides the background of the Charlotte Area designation status with respect to the various ozone NAAQS. Section III describes the applicable history of federal gasoline regulation. Section IV provides the Agency's policy regarding relaxation of the volatility standards. Section V provides EPA's analysis of the information submitted by North Carolina to support a change to the Federal RVP standard in Gaston and Mecklenburg Counties.
The Charlotte Area was originally designated as a 1-hour ozone nonattainment area by EPA on March 3, 1978 (43 FR 8962) and was geographically defined as Mecklenburg County, North Carolina. On November 6, 1991, by operation of law under section 181(a) of the CAA, EPA classified the Charlotte Area as a moderate nonattainment area for ozone and added Gaston County to the
DAQ requested a redesignation of the Charlotte Area to attainment for the 1-hour ozone NAAQS in 1993. The Area attained the 1-hour ozone NAAQS and was redesignated to attainment for the 1-hour ozone on July 5, 1995, based on 1990-1993 ambient air quality monitoring data.
On April 30, 2004, EPA designated and classified areas for the 1997 8-hour ozone NAAQS that was promulgated on July 18, 1997, as unclassifiable/attainment or nonattainment for the new 8-hour ozone NAAQS.
On May 21, 2012, EPA designated and classified areas for the 2008 8-hour ozone NAAQS that was promulgated on March 27, 2008, as unclassifiable/attainment or nonattainment for the new 8-hour ozone NAAQS.
On August 19, 1987 (52 FR 31274), EPA determined that gasoline nationwide had become increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Evaporative emissions from gasoline, referred to as volatile organic compounds (VOCs), 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 or 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 section 211(c) of CAA, EPA promulgated regulations on March 22, 1989 (54 FR 11868), that set maximum limits for the RVP of gasoline sold during the high ozone season. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of commercial gasoline during the summer ozone control season. On June 11, 1990 (55 FR 23658), 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 during the high ozone season).
The 1990 CAA Amendments established a new section, 211(h), to address fuel volatility. Section 211(h) requires 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. Section 211(h) prohibits EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that EPA may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.
On December 12, 1991 (56 FR 64704), EPA modified the Phase II volatility regulations to be consistent with section 211(h) of the CAA. The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, beginning in 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658). A current listing of the RVP requirements for states can be found at 40 CFR 80.27(a)(2) as well as on EPA's Web site at:
As explained in the December 12, 1991 (56 FR 64704), Phase II rulemaking, 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 noted above, North Carolina did not request a change of the applicable 7.8 psi Federal RVP standard when the Charlotte Area was redesignated to attainment for the either the 1-hour or the 1997 8-hour ozone NAAQS. The State, in conjunction with its request to redesignate the North Carolina portion of the Charlotte 2008 8-hour Ozone Area to attainment,
To support North Carolina's request to relax the Federal RVP requirement for Gaston and Mecklenburg Counties, the State must demonstrate that the requested change will satisfy section 110(l) of the CAA. Section 110(l) requires that a revision to the SIP not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the Act. EPA's criterion for determining the approvability of North Carolina's April 16, 2015, RVP-related SIP revision is whether the noninterference demonstration associated with the relaxation request satisfies section 110(l).
EPA evaluates each section 110(l) noninterference demonstration on a case-by-case basis considering the circumstances of each SIP revision. EPA interprets 110(l) as applying to all NAAQS that are in effect, including those that have been promulgated but for which the EPA has not yet made designations. The degree of analysis focused on any particular NAAQS in a noninterference demonstration varies depending on the nature of the emissions associated with the proposed SIP revision. EPA's analysis of North Carolina's April 16, 2015, SIP revision pursuant to section 110(l) is provided below.
As previously mentioned, EPA is proposing three actions in relation to the State's April 16, 2015, noninterference demonstration. First, EPA is proposing to approve North Carolina's update to the maintenance plan associated with the State's redesignation request for the North Carolina portion of the Charlotte 2008 8-hour Ozone Area to reflect modeling of 9.0 psi for RVP for Gaston and Mecklenburg Counties. Second, EPA is proposing to approve the revised MVEBs that result from the updated mobile modeling to reflect the change in RVP for Gaston and Mecklenburg Counties. Third, EPA is proposing to approve the State's technical demonstration that the switch to the sale of gasoline with an RVP of 9.0 psi in Gaston and Mecklenburg Counties during the high ozone season will not interfere with attainment or maintenance of the NAAQS and to amend the SIP to include this demonstration. Consistent with CAA section 211(h) and the Phase II volatility regulations, a separate rulemaking is required to change the current Federal requirement to use gasoline with a 7.8 psi RVP in Gaston and Mecklenburg Counties.
On April 16, 2015, DAQ submitted a noninterference demonstration to support the State's request to modify the RVP summertime gasoline requirement from 7.8 psi to 9.0 psi for Gaston and Mecklenburg Counties. This demonstration includes an evaluation of the impact that the removal of the 7.8 psi RVP requirement for these counties would have on the Area's ability to attain or maintain the 1997 and 2008 ozone standards or other NAAQS in the Charlotte Area.
DAQ's noninterference analysis utilized EPA's 2014 Motor Vehicle Emissions Simulator (MOVES) emission modeling system to estimate emissions for mobile sources. These mobile source emissions are used as part of the evaluation of the potential impacts to the NAAQS that might result exclusively from changing the high ozone season RVP requirement from 7.8 psi to 9.0 psi. As summarized in Tables 1 and 2, below, the MOVES model predicted minor increases in on-road mobile source NO
Table 3, below, shows the total estimated anthropogenic emissions of NO
As discussed above, the Charlotte Area is currently designated as attainment for the 1997 8-hour ozone NAAQS, and in a separate action, EPA is considering the State's redesignation request for the 2008 8-hour ozone NAAQS. Although the Charlotte Area was previously designated as nonattainment for the 1997 8-hour ozone NAAQS, the Charlotte Area was redesignated to attainment for that NAAQS on December 2, 2014.
Table 4, below, shows the safety margins
Because the 2008 8-hour ozone NAAQS is more stringent than the 1997 8-hour ozone standard, North Carolina's April 16, 2015, noninterference demonstration for the ozone NAAQS is focused on the 2008 8-hour ozone standard. The 2008 8-hour ozone NAAQS is met when the annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years is 0.075 ppm or less. As shown in Table 5, all of the ozone monitors in the Charlotte 2008 8-hour Ozone Area are currently below the 2008 8-hour ozone standard.
Table 5
Over the course of several years, EPA has reviewed and revised the PM
EPA promulgated designations for the 1997 Annual PM
In 2013, the Charlotte Area PM
On February 17, 2012, EPA designated all counties in North Carolina as unclassifiable/attainment for the 2010 NO
In November 6, 1991, Mecklenburg County was classified as “not classified” for the 1971 8-hour CO NAAQS of 9 ppm.
North Carolina's MOVES2014 modeling projected an increase in total on-road mobile source CO emissions of approximately 2.78 tpd in 2015 and 1.44 tpd in 2026 (0.71 percent and 0.60 percent of estimated total on-road mobile source emissions in those years, respectively) after changing the model inputs to reflect the proposed use of 9.0 psi RVP fuel in Gaston and Mecklenburg Counties. The 2012 and 2013 ambient monitoring data showed maximum 8-hour concentration of 1.2 ppm for the 8-hour CO. Additionally, 2012 and 2013 ambient monitoring data showed maximum 1-hour CO concentrations of 2.3 and 1.7 ppm, respectively, well below the 35 ppm 1-hour CO NAAQS. Given the current unclassifiable/attainment designation, ambient monitoring data, and the results of North Carolina's emissions analysis, EPA has preliminarily determined that a change to 9.0 psi RVP fuel for Gaston and Mecklenburg Counties would not interfere with maintenance of the 1971 1-hour and 8-hour CO NAAQS in the Charlotte Area.
On June 22, 2010, EPA revised the 1-hour SO
North Carolina's MOVES2014 modeling did not predict any change in SO
EPA is proposing to approve the State of North Carolina's noninterference demonstration, submitted on April 16, 2015, in support of the State's request that EPA change the Federal RVP requirements for Gaston and Mecklenburg Counties from 7.8 psi to 9.0 psi. Specifically, EPA is proposing to find that this change in the RVP requirements for Gaston and Mecklenburg Counties will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA. North Carolina's April 16, 2015, SIP revision also updates its maintenance plan and the associated MVEBs related to the State's redesignation request for the North Carolina portion of the 2008 Charlotte 8-hour Ozone Area to reflect emissions changes for the requested change to the Federal RVP requirements. EPA is proposing to approve those changes to update the maintenance plan and the MVEBs. As previously mentioned, final action on North Carolina's noninterference demonstration is contingent upon EPA approving the State's redesignation request and maintenance plan for the North Carolina portion of Charlotte 2008 8-hour Ozone Area.
EPA has preliminarily determined that North Carolina's April 16, 2015, RVP-related SIP revision is consistent with the applicable provisions of the
Under the CAA, the Administrator is required to approve a SIP submittal that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely proposes to approve state law as meeting Federal requirements and does not propose to impose additional requirements beyond those imposed by state law. For that reason, this proposed 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, October 7, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000) nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
On November 14, 2014, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), Air Pollution Control Division, submitted a request for the Environmental Protection Agency (EPA) to redesignate the Knoxville, Tennessee 8-hour ozone nonattainment area (hereafter referred to as the “Knoxville Area” or “Area”) to attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan and a base year emissions inventory for the Area. The Knoxville Area includes a portion of Anderson County as well as Blount and Knox Counties in their entireties. EPA is proposing to approve the base year emissions inventory for the 2008 8-hour ozone NAAQS for the Knoxville Area; to determine that the Knoxville Area is attaining the 2008 8-hour ozone NAAQS; to approve the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO
Comments must be received on or before June 22, 2015.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2014-0870, by one of the following methods:
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Jane Spann or Tiereny Bell of the Air Regulatory Management Section, in the Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Spann may be reached by phone at (404) 562-9029 or via electronic mail at
EPA is proposing to take four separate but related actions, one of which involves multiple elements: (1) To approve the base year inventory for the 2008 8-hour ozone NAAQS for the Knoxville Area into the Tennessee SIP; (2) to determine that the Knoxville Area is attaining the 2008 8-hour ozone NAAQS; (3) to approve Tennessee's plan for maintaining the 2008 8-hour ozone NAAQS (maintenance plan), including the associated MVEBs, into the SIP; and (4) to redesignate the Knoxville Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the Knoxville Area MVEBs. These actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.
Based on the 2008 8-hour ozone nonattainment designation for the Knoxville Area, Tennessee was required to develop a nonattainment SIP revision addressing certain CAA requirements. Specifically, pursuant to CAA section 182(a)(3)(B) and section 182(a)(1), the Knoxville Area was required to submit a SIP revision addressing emissions statements and emissions inventory requirements, respectively. EPA approved the emissions statements requirements for the Area into the SIP in a separate action.
EPA is also making the preliminarily determination that the Knoxville Area is attaining the 2008 8-hour ozone NAAQS based on recent air quality data and proposing to approve Tennessee's 2008 ozone NAAQS maintenance plan for the Knoxville Area as meeting the requirements of section 175A of the CAA (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Knoxville Area in attainment of the 2008 8-hour ozone NAAQS through 2026. Additionally, EPA is proposing to approve the 2011 and 2026 NO
EPA is also notifying the public of the status of EPA's adequacy process for the NO
In summary, today's notice of proposed rulemaking is in response to Tennessee's November 14, 2014, redesignation request and associated SIP submittal that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Knoxville Area to attainment for the 2008 8-hour ozone NAAQS. More detail regarding the rationale for EPA's proposed actions is discussed below.
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm).
Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of ambient air quality data at the conclusion of the designation process. The Knoxville Area was designated nonattainment for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2009-2011 ambient air quality data.
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.
On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
On November 14, 2014, the State of Tennessee, through TDEC, requested that EPA redesignate the Knoxville Area to attainment for the 2008 8-hour ozone NAAQS. EPA's evaluation indicates that the Knoxville Area has attained the 2008 8-hour ozone NAAQS and that the Knoxville Area meets the requirements for redesignation set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA and associated MVEBs. Also, based on Tennessee's November 14, 2014, submittal, EPA is also proposing to approve the base year emissions inventory, included in Tennessee's November 14, 2014, submittal, into the SIP. Approval of the base year inventory is a prerequisite to redesignating an ozone nonattainment area to attainment.
As stated above, in accordance with the CAA, EPA proposes in today's action to: (1) Approve the 2008 8-hour ozone base year emissions inventory for the Knoxville Area into the Tennessee SIP; (2) determine that the Knoxville Area is attaining the 2008 8-hour ozone NAAQS; (3) approve the Knoxville Area's 2008 8-hour ozone NAAQS maintenance plan, including the associated sub-area MVEBs, into the Tennessee SIP; and (4) redesignate the Knoxville Area to attainment for the 2008 8-hour ozone NAAQS. Approval of the 2008 8-hour ozone base year inventory is a required prerequisite action before the Area can be redesignated to attainment. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area following the discussion below on the Knoxville emissions inventory.
Section 182(a)(1) of the CAA requires states to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutant or pollutants in each ozone nonattainment area. The section 182(a)(1) base year inventory is defined in the SIP Requirements Rule as “a comprehensive, accurate, current
Knoxville selected 2011 as the base year for the section 182(a)(1) emissions inventory which is the year corresponding with the first triennial inventory under 40 CFR part 51, subpart A. This base year is one of the three years of ambient data used to determine attainment and therefore represents emissions associated with attainment conditions. The emissions inventory is based on data developed and submitted by TDEC and Knox County Division of Air Quality Management to TDEC to EPA's 2011 National Emissions Inventory (NEI), and it contains data elements consistent with the detail required by 40 CFR part 51, subpart A.
Knoxville's emissions inventory for its portion of the Area provides 2011 emissions data for NO
The emissions inventory includes all anthropogenic VOC and NO
Point sources are large, stationary, identifiable sources of emissions that release pollutants into the atmosphere. The inventory contains point source emissions data for facilities located within the Blount and Knox Counties as well as the portion of Anderson County included in the Area based on GIS mapping. Each facility was required to update the previous Emission Database Layout (EDL) file with information for the requested year and return the updated EDL to the TDEC emission inventory mailbox. For this submittal, point source emissions were obtained from EDL for facilities in the nonattainment counties. The point source emissions inventory for Blount and Knox County as well as the portion of Anderson County included in the Area is located in the docket for today's action.
Area sources are small emission stationary sources which, due to their large number, collectively have significant emissions (
On-road mobile sources include vehicles used on roads for transportation of passengers or freight. Tennessee developed its on-road emissions inventory using EPA's Motor Vehicle Emissions Simulator (MOVES) model for each ozone nonattainment
Non-road mobile sources include vehicles, engines, and equipment used for construction, agriculture, recreation, and other purposes that do not use roadways (
For the reasons discussed above, EPA has preliminarily determined that Tennessee's emissions inventory meets the requirements under CAA section 182(a)(1) and the SIP Requirements Rule for the 2008 8-hour ozone NAAQS. Approval of Tennessee's redesignation request and associated maintenance plan is contingent upon EPA's final approval of the base year emission inventory for the 2008 8-hour ozone NAAQS.
The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Knoxville Area in the following paragraphs of this section.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if it meets the 2008 8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.15 and Appendix I of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.075 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix I, the NAAQS are attained if the design value is 0.075 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.
In this action, EPA is preliminarily determining that the Knoxville Area is attaining the 2008 8-hour ozone NAAQS. EPA reviewed the available ozone monitoring data from monitoring stations in the Knoxville Area for the 2008 8-hour ozone NAAQS for 2011-2013. These data have been quality-assured, are recorded in Aerometric Information Retrieval System (AIRS-AQS), and indicate that the Area is attaining the 2008 8-hour ozone NAAQS. The fourth-highest 8-hour ozone values at each monitor for 2011, 2012, and 2013, and the 3-year averages for 2011-2013 (
The 3-year design value for 2011-2013 is 0.074 ppm,
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Tennessee has met all applicable SIP requirements for the Knoxville Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Tennessee SIP satisfies the criterion that it meets
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.
In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (
Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC RACT rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. The Knoxville Area is not subject to the section 182(a)(2) RACT “fix up” because it was designated as nonattainment after the enactment of the 1990 CAA amendments.
Section 182(a)(2)(B) requires each state with a marginal ozone nonattainment area that implemented, or was required to implement, an inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. The Knoxville Area is not subject to the section 182(a)(2)(B) because it was designated as nonattainment after the enactment of the 1990 CAA amendments and did not have an I/M program in place prior to those amendments.
Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Tennessee currently has a fully-approved part D NSR program in place. However, EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR, because PSD requirements
Section 182(a)(3) requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires states to submit a periodic inventory every three years. As discussed below in the section of this notice titled Criteria (4)(e),
EPA interprets the conformity SIP requirements
EPA has fully approved the applicable Tennessee SIP for the Knoxville Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (
As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. With the exception of the emissions inventory requirement, which is addressed in this action, EPA has approved all part D requirements applicable for purposes of this redesignation.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Tennessee has demonstrated that the observed air quality improvement in its portion of the Knoxville Area is due to permanent and enforceable reductions in emissions resulting from federal measures and from state measures adopted into the SIP. EPA does not have any information to suggest that the decrease in ozone concentrations in the Knoxville Area is due to unusually favorable meteorological conditions.
State and Federal measures enacted in recent years have resulted in permanent emission reductions. Most of these emission reductions are enforceable through regulations. A few non-regulatory measures also result in emission reductions. The state and local measures that have been implemented to date and relied upon by Tennessee to demonstrate attainment and/or maintenance in the Knoxville Area include the Statewide Motor Vehicle Anti-Tampering Rule and Stage I Gasoline Vapor Recovery. These measures are approved in the federally-approved SIP and thus are permanent and enforceable. The Federal measures that have been implemented include the following:
Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR's cap-and-trade programs would have superseded the CAIR cap and trade programs. Numerous parties filed petitions for review of CSAPR, and on December 30, 2011, the D.C. Circuit issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR.
On August 21, 2012, the D.C. Circuit issued its ruling, vacating and remanding CSAPR to EPA and once again ordering continued implementation of CAIR.
On April 29, 2014, the Supreme Court vacated and reversed the D.C. Circuit Court's decision regarding CSAPR, and remanded that decision to the D.C. Circuit Court to resolve remaining issues in accordance with its ruling.
As mentioned above, the State measures that have been implemented include the following:
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Knoxville Area to attainment for the 2008 8-hour ozone NAAQS, TDEC submitted a SIP revision to provide for the maintenance of the 2008 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA has made the preliminary determination that this maintenance plan meets the requirements for approval under section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the remainder of the 20-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2008 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA proposes to find that Tennessee's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Tennessee SIP.
EPA is proposing to determine that the Knoxville Area has attained the 2008 8-hour ozone NAAQS based on monitoring data for the 3-year period from 2011-2013. Tennessee selected 2011 as the base year (
The attainment year emissions were projected to future years separately using different methods by source categories, including: Point sources; area sources; on-road mobile sources; non-road mobile sources including commercial marine vessels, locomotives and air craft (MLA); and non-road mobile sources excluding MLA. The emissions were projected for 2014, 2017, 2020, 2023 and 2026 using 2011 emissions and growth factors developed from the methodology from SESARM Metro4, Inc. Growth factors were developed using the U.S. Energy Information Administration's 2014 Annual Energy Outlook (AEO2014) energy consumption and production forecasts.
Tennessee's 2011 emissions inventory, prepared by TDEC, was used as a source of base year emissions for Blount and Knox Counties, as well as the part of Anderson County included in the Area. NO
Nonpoint sources captured in the inventory include stationary sources whose emissions levels of NO
The 2011 NO
The November 14, 2014, final SIP revision includes a maintenance plan for the Knoxville Area. The maintenance plan:
(i). Shows compliance with and maintenance of the 8-hour ozone standard by providing information to support the demonstration that current and future emissions of NO
(ii). Uses 2011 as the attainment year and includes future emissions inventory projections and national growth factors for 2014, 2017, 2020, 2023, and 2026.
(iii). Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NO
(iv). Provides actual (2011) and projected emissions inventories, in tons per day (tpd), for the Knoxville Area, as shown in Tables 3 and 4, below.
In situations where local emissions are the primary contributor to nonattainment, such as the Knoxville Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the ambient air quality standard should not be exceeded in the future. Tennessee has projected emissions as described previously and determined that emissions in the Knoxville Area will remain below those in the attainment year inventory for the duration of the maintenance plan.
As discussed in section VI of this proposed rulemaking, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Tennessee selected 2011 as the attainment emissions inventory year for the Knoxville Area and calculated a safety margin for 2026. The State has decided to allocate a portion of this 2026 safety margin to the 2026 MVEB for the Knoxville Area. Specifically, Tennessee has decided to allocate 8.53 tpd to the 2026 NO
There are currently three monitors measuring ozone in the Knoxville Area. The State of Tennessee, through TDEC, has committed to continue operation of the monitors in Knoxville Area in compliance with 40 CFR part 58 and have thus addressed the requirement for monitoring. EPA approved the ozone portion of Tennessee's 2012 annual ambient air monitoring network plan on June 15, 2012.
The State of Tennessee, through TDEC, has the legal authority to enforce and implement the requirements of the maintenance plan for the Knoxville Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.
Verification of continued attainment is accomplished through operation of the ambient ozone monitoring network and the periodic updates of the Area's emissions inventory. As discussed above, TDEC will continue to operate the current monitors located in the Knoxville Area. There are no plans to discontinue operation, relocate, or otherwise change the existing ambient monitoring network. Tennessee will continue to update its emissions inventory at least once every three years.
The Consolidated Emissions Reporting Rule (CERR) was promulgated by EPA on June 10, 2002. The CERR was replaced by the Annual Emissions Reporting Requirements (AERR) rule on December 17, 2008. The most recent triennial inventory for Tennessee was compiled for 2011. The larger point sources of air pollution will continue to submit data on their emissions on an annual basis as required by the AERR. Emissions from the rest of the point sources, the nonpoint source portion, and the on-road and nonroad mobile sources continue to be quantified on a three-year cycle. The inventory will be updated and maintained on a three-year cycle. As required by the AERR, the next overall emissions inventory will be compiled for 2014.
Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state
The contingency plan included in Tennessee's SIP revision includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. The State of Tennessee will use actual ambient monitoring data and emissions inventory data as the indicators to determine whether a trigger has been activated and whether contingency measures should be implemented.
Tennessee has identified a primary trigger (Tier I) that will be activated when any quality-assured/quality controlled 8-hour ozone monitoring reading exceeds 0.075 ppm at an ambient monitoring station located in the Knoxville Area or if the periodic emission inventory updates reveal excessive or unanticipated growth greater than 10 percent in emissions of NO
The ozone trigger concentrations described above apply to each monitor in the maintenance area. TDEC will evaluate a Tier I condition, if it occurs, as expeditiously as practicable to determine the cause(s) of the ambient ozone or emissions inventory increase and to determine if a Tier II condition (see below) is likely to occur.
A secondary trigger (Tier II) is activated when any violation of the 2008 8-hour ozone NAAQS at any of the ambient monitoring stations in the Knoxville Area is recorded, based on quality-assured monitoring data. In the event that a Tier II trigger is activated, Tennessee and Knox County DAQM will conduct a comprehensive study to determine the cause(s) of the ambient ozone increase and will implement any required measures as expeditiously as practicable, taking into consideration the ease of implementation and the technical and economic feasibility of selected measures.
Tennessee and Knox County DAQM will, in the event of: (1) A Tier II trigger condition, or (2) a Tier I condition in which Tennessee has determined that a Tier II condition is likely to occur, conduct a comprehensive study to determine what contingency measure(s) are required for the maintenance of the ozone standard. Since the Knoxville Area may be influenced by emissions from outside the maintenance area, the study will attempt to determine whether the trigger condition is due to local emissions, emissions from elsewhere, or a combination of the previous. Selected emission control measures will be subject to public review and the State will seek public input prior to selecting new emission control measures.
The comprehensive study will be completed and submitted to EPA for review as expeditiously as practical, but no later than nine months after the Tier I or Tier II trigger is activated. When Tennessee and Knox County DAQM determines, through the comprehensive study, what contingency measure(s) are required for the maintenance of the ozone standard, appropriate corrective measures will be adopted and implemented within 18 to 24 months after the Tier I or II trigger occurs. The proposed schedule for these actions include:
• Six months to identify appropriate contingency measures;
• Three to six months to initiate stakeholder process; and
• Nine to twelve months to implement the contingency measures.
Section 175A(d) requires that state maintenance plans shall include a requirement that the state will implement all measures with respect to the control of the air pollutant concerned which were contained in the SIP for the area before redesignation of the area to attainment. Currently all such measures are in effect for the Knoxville Area. Contingency measure(s) will be selected from the following types of measures or from any other measure deemed appropriate and effective at the time the selection is made:
• Implementation of diesel retrofit programs, including incentives for performing retrofits.
• Reasonable Available Control Technology (RACT) for NO
• Programs or incentives to decrease motor vehicle use, including employer-based programs, additional park and ride services, enhanced transit service and encouragement of flexible work hours/compressed work week/telecommuting.
• Trip reduction ordinances.
• Additional emissions reductions on stationary sources.
• Enhanced stationary source inspection to ensure that emissions control equipment is functioning properly.
• Voluntary fuel programs including incentives for alternative fuels.
• Construction of high-occupancy vehicle (HOV) lanes, or restriction of certain roads or lanes for HOV.
• Programs for new construction and major reconstruction of bicycle and pedestrian facilities, including shared use paths, sidewalks and bicycle lanes.
• Expand Air Quality Action Day activities/Clean Air Partners public education outreach.
• Expansion of E-Government services at State and local level.
• Additional Enforcement or outreach on driver observance of reduce speed limits.
• Land use/transportation policies.
• Promotion of non-motorized transportation.
• Promotion or tree-planting standards that favor trees with low VOC biogenic emissions.
• Promotion if energy saving plans for local government.
• Gas can and lawnmower replacement programs.
• Seasonal open burning ban in nonattainment counties.
• Evaluation of anti-idling rules and/or policy.
• Additional controls in upwind areas, if necessary.
EPA has preliminarily concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, the maintenance plan for the Knoxville Area meets the requirements of section 175A of the CAA and is approvable.
Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (
Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration requirements) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions.
After interagency consultation with the transportation partners for the Knoxville Area, Tennessee has developed MVEBs for NO
As mentioned above, Tennessee has chosen to allocate a portion of the available safety margin to the NO
Through this rulemaking, EPA is proposing to approve the MVEBs for NO
When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM
As discussed earlier, Tennessee's maintenance plan includes NO
EPA intends to make its determination on the adequacy of the 2011 and 2026 MVEBs for the Knoxville Area for transportation conformity purposes in the near future by completing the adequacy process that was started on December 4, 2014. After EPA finds the 2011 and 2026 MVEBs adequate or approves them, the new MVEBs for NO
EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval today. Approval of Tennessee's redesignation request would change the legal designation of Blount and Knox Counties and the portion of Anderson County included in the Knoxville Area, found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of Tennessee's associated SIP revision would also incorporate a plan for maintaining the 2008 8-hour ozone NAAQS in the Knoxville Area through 2026 and a section 182(a)(1) base year emissions inventory into the Tennessee SIP. The maintenance plan establishes NO
EPA is now proposing to take four separate but related actions regarding the Knoxville Area's redesignation and maintenance of the 2008 8-hour ozone NAAQS. First, EPA is proposing to approve Tennessee's section 182(a)(1) base year emissions inventory for the 2008 8-hour ozone standard for the Knoxville Area into the SIP. Approval of the base year inventory is a prerequisite for EPA to redesignate the Area from nonattainment to attainment.
Second, EPA is proposing to determine that the Knoxville Area is attaining the 2008 8-hour ozone NAAQS based on complete, quality-assured and certified monitoring data for the 2011-2013 monitoring period. Preliminary 2012-2014 data in AQS indicates that the Area is continuing to attain the 2008 8-hour ozone NAAQS.
Third, EPA is proposing to approve the maintenance plan for the Knoxville Area, including the NO
Finally, EPA is proposing to determine that Tennessee has met the criteria under CAA section 107(d)(3)(E) for the Knoxville Area for redesignation from nonattainment to attainment for the 2008 8-hour ozone NAAQS. On this basis, EPA is proposing to approve Tennessee's redesignation request for the 2008 8-hour ozone NAAQS for the Knoxville Area. If finalized, approval of the redesignation request would change the official designation of Blount and Knox Counties and the portion of Anderson County in the Knoxville Area for the 2008 8-hour ozone NAAQS from nonattainment to attainment, as found at 40 CFR part 81.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Are not a significant regulatory actions 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);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are 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
• do 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);
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are 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
• do 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 SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
On April 16, 2015, the State of North Carolina, through the North Carolina Department of Environment and Natural Resources, Department of Air Quality (NC DAQ), submitted a request for the Environmental Protection Agency (EPA) to redesignate the portion of North Carolina that is within the bi-state Charlotte-Rock Hill, North Carolina-South Carolina 8-hour ozone nonattainment area (hereafter referred to as the “bi-state Charlotte Area,” or “Area”) to attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to determine that the bi-State Charlotte Area is attaining the 2008 8-hour ozone NAAQS; to approve the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the sub-area motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO
Comments must be received on or before June 11, 2015.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0275, by one of the following methods:
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Sean Lakeman of the Air Regulatory Management Section, Air Planning and
EPA is proposing to take the following three separate but related actions, one of which involves multiple elements: (1) To determine that the bi-Charlotte Area is attaining the 2008 8-hour ozone NAAQS; (2) to approve North Carolina's plan for maintaining the 2008 8-hour ozone NAAQS (maintenance plan), including the associated sub-area MVEBs for the North Carolina portion of the bi-state Charlotte Area, into the SIP; and (3) to redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the sub-area MVEBs for the North Carolina portion of the bi-state Charlotte Area. The bi-state Charlotte Area consists of Mecklenburg County in its entirety and portions of Cabarrus, Gaston, Iredell, Lincoln, Rowan and Union Counties, North Carolina; and a portion of York County, South Carolina. On April 17, 2015, the State of South Carolina, through the South Carolina Department of Health and Control (SC DHEC), provided a redesignation request and maintenance plan for its portion of the bi-state Charlotte Area. EPA will address South Carolina's request and maintenance plan in a separate action. These proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.
EPA is also making the preliminarily determination that the bi-state Charlotte Area is attaining the 2008 8-hour ozone NAAQS based on recent air quality data and proposing to approve North Carolina's maintenance plan for its portion of the bi-state Charlotte Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the bi-state Charlotte Area in attainment of the 2008 8-hour ozone NAAQS through 2026. The maintenance plan includes 2014 and 2026 sub-area MVEBs for NO
EPA also proposes to determine that the North Carolina portion of the bi-state Charlotte Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of Mecklenburg County in its entirety and the following portions of:
• Cabarrus County (Central Cabarrus Township, Concord Township, Georgeville Township, Harrisburg Township, Kannapolis Township, Midland Township, Mount Pleasant Township, New Gilead Township, Odell Township, Poplar Tent Township, Rimertown Township),
• Gaston County (Crowders Mountain Township, Dallas Township, Gastonia Township, Riverbend Township, South Point Township),
• Iredell County (Davidson Township, Coddle Creek Township),
• Lincoln County (Catawba Springs Township, Ironton Township, Lincolnton Township),
• Rowan County (Atwell Township, China Grove Township, Franklin Township, Gold Hill Township, Litaker Township, Locke Township, Providence Township, Salisbury Township, Steele Township, Unity Township), and
• Union County (Goose Creek Township, Marshville Township, Monroe Township, Sandy Ridge Township, Vance Township), in North Carolina from nonattainment to attainment for the 2008 8-hour ozone NAAQS.
EPA is also notifying the public of the status of EPA's adequacy process for the 2014 and 2026 NO
In summary, this notice of proposed rulemaking is in response to North Carolina's April 16, 2015, redesignation request and associated SIP submission that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the North Carolina portion of the bi-state Charlotte Area to attainment for the 2008 8-hour ozone NAAQS.
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm).
Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of complete, quality assured, and certified ambient air quality data at the conclusion of the designation process. The bi-state Charlotte Area was designated nonattainment for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2009-2011 ambient air quality data.
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.
On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
On April 16, 2015, the State of North Carolina, through NC DAQ, requested that EPA redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 2008 8-hour ozone NAAQS. EPA's evaluation indicates that the entire bi-state Charlotte Area has attained the 2008 8-hour ozone NAAQS, and that the North Carolina portion of the bi-state Charlotte Area meets the requirements for redesignation as set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the three related actions summarized in section I of this document.
As stated above, in accordance with the CAA, EPA proposes in this action to: (1) Determine that the bi-state Charlotte Area is attaining the 2008 8-hour ozone NAAQS; (2) approve the North Carolina portion of the bi-state Charlotte Area's 2008 8-hour ozone NAAQS maintenance plan, including the associated sub-area MVEBs, into the North Carolina SIP; and (3) redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 2008 8-hour ozone NAAQS. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if it meets the 2008 8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.15 and Appendix I of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.075 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix I, the NAAQS are attained if the design value is 0.075 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.
In this action, EPA is preliminarily determining that the bi-state Charlotte Area is attaining the 2008 8-hour ozone NAAQS. EPA reviewed ozone monitoring data from monitoring stations in the bi-state Charlotte Area for the 2008 8-hour ozone NAAQS for 2012-2014. These data have been quality-assured, are recorded in Aerometric Information Retrieval System (AIRS-AQS), and indicate that
The 3-year design value for 2012-2014 for the bi-state Charlotte Area is 0.073 ppm,
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that North Carolina has met all applicable SIP requirements for the North Carolina portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the North Carolina SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.
In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (
Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC RACT rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. On June 23, 1994, EPA determined that North Carolina met the section 182(a)(2) RACT “fix up” requirements.
Section 182(a)(2)(B) requires each state with a marginal ozone nonattainment area that implemented, or was required to implement, an inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. On June 2, 1995, EPA determined that North Carolina met requirements of section 182(a)(2)(B).
Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), North Carolina currently has a fully-approved part D NSR program in place. However, EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR, because PSD requirements will apply after redesignation. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” North Carolina's PSD program will become applicable in the bi-state Charlotte Area upon redesignation to attainment.
Section 182(a)(3) requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires states to submit a periodic inventory every three years. As discussed below in the section of this document titled Criteria (4)(e),
EPA interprets the conformity SIP requirements
EPA has fully approved the applicable North Carolina SIP for the bi-state
As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. EPA has approved all part D requirements applicable for purposes of this redesignation. As noted above, this action to propose approval of North Carolina's redesignation request for the North Carolina portion of the bi-state Charlotte Area is contingent upon EPA taking final action to approve the July, 7, 2014, emissions inventory and emissions statements SIP revision, which was published as direct final and proposed rules on April 21, 2015.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that North Carolina has demonstrated that the observed air quality improvement in the bi-state Charlotte Area is due to permanent and enforceable reductions in emissions resulting from Federal measures and from state measures adopted into the SIP. EPA does not have any information to suggest that the decrease in ozone concentrations in the bi-state Charlotte Area is due to unusually favorable meteorological conditions.
State and Federal measures enacted in recent years have resulted in permanent emission reductions. Most of these emission reductions are enforceable through regulations. A few non-regulatory measures also result in emission reductions. The state and local measures that have been implemented to date and relied upon by North Carolina to demonstrate attainment and/or maintenance include the Clean Air Bill I/M program and North Carolina's Clean Smokestacks Act. These measures are approved in the federally-approved SIP and thus are permanent and enforceable. The Federal measures that have been implemented include the following:
Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR's cap-and-trade programs would have superseded the CAIR cap and trade programs. Numerous parties filed petitions for review of CSAPR, and on December 30, 2011, the D.C. Circuit Court issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR.
On August 21, 2012, the D.C. Circuit issued its ruling, vacating and remanding CSAPR to EPA and once again ordering continued implementation of CAIR.
On April 29, 2014, the Supreme Court vacated and reversed the D.C. Circuit's decision regarding CSAPR, and remanded that decision to the D.C. Circuit Court to resolve remaining issues in accordance with its ruling.
As mentioned above, the State measures that have been implemented include the following:
On February 5, 2015, EPA approved a change to North Carolina's I/M rules triggered by a state law which exempted plug-in vehicles and the three newest model year vehicles with less than 70,000 miles on their odometers from emission inspection in all areas in North
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 2008 8-hour ozone NAAQS, NC DAQ submitted a SIP revision to provide for the maintenance of the 2008 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2008 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA has preliminarily determined that North Carolina's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the North Carolina SIP.
EPA is proposing to determine that the bi-state Charlotte Area has attained the 2008 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2012-2014. North Carolina selected 2014 as the base year (
The emissions inventory is composed of four major types of sources: Point, area, on-road mobile, and non-road mobile. The complete descriptions of how the inventories were developed are discussed in the Appendix B of the April 16, 2015, submittal, which can be found in the docket for this action. Point source emissions are tabulated from data collected by direct on-site measurements of emissions or from mass balance calculations utilizing emission factors from EPA's AP-42 or stack test results. For each projected year's inventory, point sources are adjusted by growth factors based on Standard Industrial Classification codes generated using growth patterns obtained from County Business Patterns. For the electric generating utility sources, the estimated projected future year emissions were based on information provided by the utility company. For the sources that report to the EPA's Clean Air Markets Division, the actual 2014 average July day emissions were used. For the other Title V sources, the latest data available (2013) was used to represent 2014 base year emissions. For sources emitting less than 25 tons per year and subject to the emissions statement requirements, the most recently reported data (2013) was used to represent 2014 base year emissions. For the small sources that only report emissions every 5 years, the most recently reported data (2013) was used to represent 2014 base year emission, since emissions from these sources do not vary much from year to year. Rail yard and airport emissions reported were obtained from the EPA's 2011 National Emission Inventory.
For area sources, emissions are estimated by multiplying an emission factor by some known indicator of collective activity such as production, number of employees, or population. For each projected year's inventory, area source emissions are changed by population growth, projected production growth, or estimated employment growth.
The non-road mobile sources emissions are calculated using EPA's NONROAD2008a model, with the exception of the railroad locomotives which were estimated by taking activity and multiplying by an emission factor. For each projected year's inventory, the emissions are estimated using EPA's NONROAD2008a model with activity input such as projected landing and takeoff data for aircraft.
For on-road mobile sources, EPA's Motor Vehicle Emission Simulator (MOVES2014) mobile model is run to generate emissions. The MOVES2014 model includes the road class vehicle miles traveled (VMT) as an input file and can directly output the estimated emissions. For each projected year's inventory, the on-road mobile sources emissions are calculated by running the MOVES mobile model for the future year with the projected VMT to generate emissions that take into consideration expected Federal tailpipe standards, fleet turnover, and new fuels.
The 2014 NO
The maintenance plan associated with the redesignation request includes a maintenance demonstration that:
(i) Shows compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NO
(ii) Uses 2014 as the attainment year and includes future emissions inventory projections for 2015, 2018, 2022, and 2026.
(iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NO
(iv) Provides actual (2014) and projected emissions inventories, in tons per day (tpd), for the North Carolina portion of the bi-state Charlotte Area, as shown in Tables 2 through 4, below.
In situations where local emissions are the primary contributor to nonattainment, such as the bi-state Charlotte Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the ambient air quality standard should not be exceeded in the future. North Carolina has projected emissions as described previously and determined that emissions in the North Carolina portion of the bi-state Charlotte Area will remain below those in the attainment year inventory for the duration of the maintenance plan.
As discussed in section VI of this proposed rulemaking, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. North Carolina selected 2014 as the attainment emissions inventory year for the North Carolina portion of the bi-state Charlotte Area. North Carolina calculated safety margins in its submittal for years 2015, 2018, 2022, and 2026. Because the initial sub-area MVEB year of 2014 is also the base year for the maintenance plan inventory, there is no safety margin, therefore, no adjustments were made to the sub-area MVEBs for 2014. The State has allocated a portion of the 2026 safety margin to the 2026 sub-area MVEBs for the bi-state Charlotte Area.
The State has decided to allocate a portion of the 2026 safety margin to the 2026 sub-area MVEBs to allow for unanticipated growth in VMT, changes and uncertainty in vehicle mix assumptions, etc., that will influence the emission estimations. NC DAQ developed and implemented a five-step approach for determining a factor to use to calculate the amount of safety margin to apply to the sub-area MVEBs. Based on this approach, NC DAQ has allocated 2.93 tpd (2650 kg/day) to the 2026 NO
There are currently seven monitors measuring ozone in the North Carolina portion of the bi-state Charlotte Area. NC DAQ operates four of the monitors in the Area, whereas the Mecklenburg County Air Quality (MCAQ) Office operates three of the monitors in Mecklenburg County. The State of North Carolina, through NC DAQ, has committed to continue operation of all monitors in the North Carolina portion of the bi-state Charlotte Area in compliance with 40 CFR part 58 and have thus addressed the requirement for monitoring. EPA approved North Carolina's monitoring plan on November 25, 2013.
The State of North Carolina, through NC DAQ, has the legal authority to enforce and implement the maintenance plan for the North Carolina portion of the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.
Large stationary sources are required to submit an emissions inventory annually to NC DAQ or MCAQ. NC DAQ commits to review these emissions inventories to determine if any unexpected growth in NO
Additionally, under the Consolidated Emissions Reporting Rule (CERR) and Air Emissions Reporting Requirements (AERR), NC DAQ is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. The AERR inventory years match the base year and final year of the inventory for the maintenance plan, and are within one or two years of the interim inventory years of the maintenance plan. Therefore, NC DAQ commits to compare the CERR and AERR inventories as they are developed with the maintenance plan to determine if additional steps are necessary for continued maintenance of the 2008 8-hour ozone NAAQS in this Area.
Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).
In the April 16, 2015, submittal, North Carolina affirms that all programs instituted by the State and EPA will remain enforceable and that sources are prohibited from reducing emissions controls following the redesignation of the Area. The contingency plan included in the submittal includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. The primary trigger of the contingency plan will be a violation of the 2008 8-hour ozone NAAQS (
The secondary trigger will apply where no actual violation of the 2008 8-hour ozone NAAQS has occurred, but where the State finds monitored ozone levels indicating that an actual ozone NAAQS violation may be imminent. A pattern will be deemed to exist when there are two consecutive ozone seasons in which the 4th highest values are 0.076 ppm or greater at a single monitor within the Area. The trigger date will be 60 days from the date that the State observes a 4th highest value of 0.076 ppm or greater at a monitor for which the previous season had a 4th highest value of 0.076 ppm or greater.
Once the primary or secondary trigger is activated, the Planning Section of the NC DAQ, in consultation with SC DHEC and MCAQ, shall commence analyses including trajectory analyses of high ozone days and an emissions inventory assessment to determine those emission control measures that will be required for attaining or maintaining the 2008 8-hour ozone NAAQS. By May 1 of the year following the ozone season in which the primary or secondary trigger has been activated, North Carolina will complete sufficient analyses to begin adoption of necessary rules for ensuring attainment and maintenance of the 2008 8-hour ozone NAAQS. The rules would become State effective by the following January 1, unless legislative review is required.
At least one of the following contingency measures will be adopted and implemented upon a primary triggering event:
• NO
• diesel inspection and maintenance program;
• implementation of diesel retrofit programs, including incentives for performing retrofits;
• additional controls in upwind areas.
The NC DAQ commits to implement within 24 months of a primary or secondary trigger,
North Carolina has also developed a tertiary trigger that will be a first alert as to a potential air quality problem on the horizon. This trigger will be activated when a monitor in the Area has a 4th highest value of 0.076 ppm or greater, starting the first year after the maintenance plan has been approved. The trigger date will be 60 days from the date that the State observes a 4th highest value of 0.076 ppm or greater at any monitor.
Once the tertiary trigger is activated, the Planning Section of the NC DAQ, in consultation with the SC DHEC and
EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, the maintenance plan SIP revision submitted by North Carolina for the State's portion of the Area meets the requirements of section 175A of the CAA and is approvable.
Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (
Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration requirements) and maintenance plans create MVEBs (or in this case sub-area MVEBs) for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions.
As part of the interagency consultation process on setting sub-area MVEBs, the DAQ held three conference calls with the Charlotte Regional Transportation Planning Organization (CRTPO)—Rocky River Rural Planning Organization (RRRPO), Gaston-Cleveland-Lincoln Metropolitan Planning Organization (GCLMPO), and Cabarrus Rowan Metropolitan Planning Organization (CRMPO) to determine what years to set sub-area MVEBs for the Charlotte maintenance plan. According to the transportation conformity rule, a maintenance plan must establish MVEBs for the last year of the maintenance plan (in this case, 2026).
Accordingly, NC DAQ established separate sub-area MVEBs based on the latest Metropolitan Planning Organization jurisdictional boundaries such that sub-area MVEBs are established for the CRMPO (Cabarrus and Rowan Counties), for the CRTPO-RRRPO (Iredell, Mecklenburg and Union Counties), and for the GCLMPO (Gaston and Lincoln Counties) subareas. Although Cleveland County is included in the GCLMPO, it is not included in the Charlotte ozone nonattainment area.
Tables 6 through 8 below provide the NO
As mentioned above, North Carolina has chosen to allocate a portion of the available 2026 safety margin to the NO
Through this rulemaking, EPA is proposing to approve the sub-area MVEBs for NO
When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM
As discussed earlier, North Carolina's maintenance plan includes NO
EPA intends to make its determination on the adequacy of the 2014 and 2026 sub-area MVEBs for the North Carolina portion of the bi-state Charlotte Area for transportation conformity purposes in the near future by completing the adequacy process that was started on March 17, 2015. After EPA finds the 2014 and 2026 sub-area MVEBs adequate or approves them, the new sub-area MVEBs for NO
EPA's proposed actions establish the basis upon which EPA may take final
EPA is taking three separate but related actions regarding the redesignation and maintenance of the 2008 8-hour ozone NAAQS for the North Carolina portion of the bi-state Charlotte Area.
EPA proposes to determine that the Charlotte Area has attained the 2008 8-hour ozone standard by the July 20, 2015, required attainment date. EPA is proposing to determine that the entire bi-state Charlotte Area is attaining the 2008 8-hour ozone NAAQS, based on complete, quality-assured, and certified monitoring data for the 2012-2014 monitoring period. EPA is also proposing to approve the maintenance plan for the North Carolina portion of the Area, including the NO
Additionally, EPA is proposing to determine that the North Carolina portion of the bi-state Charlotte Area has met the criteria under CAA section 107(d)(3)(E) for redesignation from nonattainment to attainment for the 2008 8-hour ozone NAAQS. On this basis, EPA is proposing to approve North Carolina's redesignation request for the North Carolina portion of the bi-state Charlotte Area. If finalized, approval of the redesignation request would change the official designation of Mecklenburg County in its entirety, and a portion of Cabarrus, Gaston, Iredell, Lincoln, Rowan and Union Counties in North Carolina, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Are 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);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are 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
• Do 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);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do 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 SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice of Proposed Rulemaking (NPRM).
PHMSA is proposing to amend the natural and other gas pipeline safety regulations (49 CFR part 192) to address regulatory requirements involving plastic piping systems used in gas services. These proposed amendments are intended to correct errors, address inconsistencies, and respond to petitions for rulemaking. The requirements in several subject matter areas are affected, including incorporation of tracking and traceability provisions; design factor for polyethylene (PE) pipe; more stringent mechanical fitting requirements; updated and additional regulations for risers; expanded use of Polyamide-11 (PA-11) thermoplastic pipe; incorporation of newer Polyamide-12 (PA-12) thermoplastic pipe; and incorporation of updated and additional standards for fittings.
Submit comments on or before July 31, 2015.
Comments should reference Docket No. PHMSA-2014-0098 and may be submitted in the following ways:
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Comments are posted without changes or edits to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
The use and availability of plastic pipe have changed over the years with technological innovations in the products and best practices used in plastic pipe installations. Progress in the design and manufacture of plastic pipe and components has resulted in materials with higher strength characteristics. Manufacturers are instituting new practices related to traceability. Operators are incorporating best practices. Together, these measures have the potential to improve with pipeline safety and integrity. Some of these strides have been highlighted in petitions that are detailed below. The pipeline safety regulations have not stayed current with some of these products; this rulemaking is an effort to propose a number of revisions to incorporate these changes in the interest of pipeline safety.
PHMSA has received several rulemaking petitions involving plastic pipe. Copies of these petitions have been placed in the docket (PHMSA-2014-0098) for this rulemaking in addition to the docket that may have been initially established for the petition. This proposed rule will address the following petitions:
• American Gas Association (AGA)—(Docket No. PHMSA 2010-0011)—Petition to increase design factor 0.32 to 0.4 and incorporate updated ASTM D2513 (standard for Polyethylene (PE) pipe).
• Evonik Industries (Evonik) and UBE Industries (UBE)—(Docket No. PHMSA 2010-0009)—Petition to allow use of Polyamide (PA-12) pipe.
• Arkema—(Docket No. PHMSA 2013-0227)—Petition to allow use of Polyamide (PA-11) pipe at higher pressures.
• Gas Piping Technology Committee (GPTC)—Petition to allow above-ground, encased plastic pipe for regulator and metering stations.
While there has been much progress, both Federal and State inspectors, have noticed some issues related to the installation of plastic pipe that should be addressed in the pipeline safety regulations. In an effort to address these issues, respond to petitions and update the regulations with respect to the products and practices used in plastic pipe system without compromising safety, PHMSA is proposing revisions to the Federal Pipeline Safety Regulations (PSR) in 49 CFR part 192. This focus will limit these proposals to plastic pipelines in gas service and subsequently to new, repaired, and replaced pipes. These issues are addressed and detailed below as follows:
In many cases, the lack of adequate traceability for plastic pipe (
In addition, the issue can result in excessive pipe excavations due to an inability to locate the affected sections of pipe or fittings when responding to plastic pipe or component manufacturer recalls. In 2001, the National Association of Pipeline Safety Representatives (NAPSR), a non-profit organization of State pipeline safety personnel that promotes pipeline safety in the United States and its territories, also noted this issue in its RESOLUTION NO. 2001-2-SR-2-01 (Resolution SR-2-01). In its Resolution, NAPSR referred to accident investigations where insufficient data regarding the pipe material (
In an effort to address the concerns mentioned above and to address the resolution from NAPSR, PHMSA proposes new requirements for tracking and traceability of plastic pipe and components that extend beyond marking alone. To set the framework for tracking and traceability, PHMSA proposes to revise § 192.3 by adding definitions for “traceability information” and “tracking information.” It is PHMSA's intent that all operators have methods to identify the location of pipe, the person who joined the pipe, and components within the pipeline (
In response to the 2001 NAPSR Resolution, PHMSA also proposes to clarify § 192.63 by expressly providing that specification and traceability markings on plastic pipe be legible, visible, and permanent in accordance with the pipe's listed specification. The proposed revisions in § 192.63 also reference the recordkeeping requirements for these markings in §§ 192.321(k) and 192.375(d). Section 192.321 applies to the installation of plastic pipe used for transmission lines and mains, and § 192.375 contains requirements for plastic service lines.
PHMSA further proposes to add a new paragraph (k) to § 192.321 and a new paragraph (d) to § 192.375 to require operators to maintain tracking and traceability information (as defined in § 192.3) records for the life of the pipeline. PHMSA believes this performance-based approach will allow for the use of other methods and technologies. For instance, during construction or repair, operators may choose to use a Global Positioning System (GPS) in combination with a barcode reader to help mark the location or identify other features of the pipe or component. Other operators without the means to purchase such equipment may choose to collect and store the information manually or electronically. The purpose of these proposed revisions is to enable operators to accurately locate and quickly identify the installed pipe and components in their systems when handling recalls and conducting failure investigations. The revisions also support the requirements in the distribution integrity management programs for capturing and retaining certain information on new pipelines for the life of the lines (§ 192.1007(a)(5)). In addition, the proposed requirement would also support the current plastic pipe-joiner qualification requirements in § 192.285.
PHMSA received petitions from the American Gas Association (AGA) and the Gas Piping Technology Committee (GPTC) to increase the design factor for PE pipe from 0.32 to 0.40 in § 192.121. The allowable design pressure for plastic is based on a number of factors, including the stress rating of the material (interpolated from a Hydrostatic Design Basis (HDB) rating), wall thickness and diameter or standard dimension ratio (SDR), and design factor. The allowable design factor is currently 0.32 for plastics. The exception to this design factor limitation applies to Polyamide-11 pipe (PA-11) produced after January 23, 2009, meeting certain conditions, which would allow the design factor to increase to 0.40. The petitions to allow for a 0.40 design factor for PE pipe are based on research and technical justifications performed by the Gas Technology Institute (GTI) and include certain limitations by type of material and wall thickness. Since design pressure for plastic pipe is based on a number of variables, including design factor and wall thickness, an increase in design factor would allow for the use of PE pipe with smaller wall thicknesses while limited to the allowable pressures determined in § 192.121 if the pipe is made from higher quality material and meets other limitations mentioned in the petitions. Furthermore, a design factor of 0.40 is already allowed in § 192.121 for PA-11 pipe with certain limitations. Upon review, PHMSA proposes to adopt this provision into the PSR. The details of the proposal are
Polyamide-11, also referred to as Nylon 11, is a relatively newer type of plastic material with a different structure (nylon- or amide-based) compared to other common plastic materials in use such as Polyethylene (ethylene-based). Similar to PE materials with different types, names, or material designation codes such as PE3408 and PE4710, Polyamides or Nylon materials have different types such as PA-6 or Nylon 6, or relatively newer types discussed in this rulemaking like PA-11 or PA-12, with material designation codes such as PA32312 or PA32316. There are a number of differences amongst the kinds of plastics and pros and cons for each, but, at a high level, Polyamides such as PA-11 have a higher strength or hydrostatic design basis (HDB) rating compared to PE materials. The HDB is a reflection of a plastic pipe's ability to resist internal pressure over long periods of time. The Hydrostatic Stress Board of the Plastics Pipe Institute (PPI) recommends and lists a HDB for a plastic pipe material based on testing of the material using the industry accepted test methods published by ASTM International. As a result of a higher HDB rating, materials like PA-11 can typically be designed and operated at higher pressures. On December 24, 2008 (73 FR 79005), PHMSA issued a final rule to allow the use of a new thermoplastic pipe made from Polyamide-11 (PA-11) with certain limitations for pressure (up to 200 psig), diameter (up to 4-inch nominal pipe size), and an SDR of 11 and below (
• ASTM F2945-12a, Standard Specification for (PA-11) Gas Pressure Pipe, Tubing and Fittings;
• ASTM/ANSI F2600-09, Standard Specification for Electrofusion Type PA-11 Fittings for Outside Diameter Controlled PA-11 Pipe and Tubing;
• ASTM/ANSI F1973-13, Standard Specification for Factory Assembled Anodeless Risers and Transition Fittings in PE and PA-11 and PA-12 Fuel Gas Distribution Systems;
• ASTM/ANSI F2145-13, Standard Specification for PA-11 and PA-12 Mechanical Fittings for Use on Outside Diameter Controlled PA-11 and PA-12 Pipe and Tubing;
• ASTM/ANSI F1948-12, Standard Specification for Metallic Mechanical Fittings for Use on Outside Diameter Controlled Thermoplastic Gas Distribution Pipe and Tubing; and
• ASME/ANSI B16.40-08, Manually Operated Thermoplastic Gas Shutoffs and Valves in Gas Distribution Systems.
As justification for its petition, Arkema points to the many years of testing and evaluation of PA-11 at operating pressures greater than 100 psig on projects under special permit and non-DOT jurisdictional pipelines that date back to 1999. Arkema also references the successful implementation of § 192.123(f), which allows for the use of PA-11 produced after January 23, 2009, at design pressures up to 200 psig under certain conditions. Although Arkema did not reference any projects that utilize PA-11 between 200 and 250 psig, Arkema believes an increase in allowable pressures up to 250 psig is justified through interpolation of a Hydrostatic Design Basis (HDB) of 3,150 psi for PA-11, as listed in Plastics Pipe Institute (PPI) TR4 (previous code limitations were based on an HDB of 2,500 psi for PA-11).
PHMSA agrees with Arkema's rationale of using the interpolation of the HDB listings for PA-11 to substantiate design pressures up to 250 psig. HDB listings are established in accordance with PPI TR-3, “Policies and Procedures for Developing Hydrostatic Design Basis (HDB), Strength Design Basis (SDB), Pressure Design Basis (PDB) or Minimum Required Strength (MRS) Ratings for Thermoplastic Piping Materials or Pipe,” which is incorporated by reference in § 192.7. As detailed in § 192.121, the design pressure (P) can be calculated by the equation P = (2S/(SDR − 1)) × (DF), where S is the HDB rating, SDR is the standard dimension ratio (the ratio of the average specified outside diameter to wall thickness), and DF is the design factor. If an HDB rating of 2,500 psi (basis for current limitation using previous vintage PA-11 pipe with material designation code PA32312) is used along with an SDR of 11 (a common value for mid-range pipe diameters) and a DF of 0.4 (which is currently allowed for PA-11), the resulting design pressure (P) would equal 200 psi, which is the current maximum allowable design pressure for PA-11 in part 192. If the HDB is changed to 3,150 psi (newer vintage PA-11 pipe with material designation code PA32316), and both the SDR and DF remain the same, the resulting design pressure would equal 252 psi, rounded down to 250 psi for a maximum allowable design pressure. Therefore, PHMSA proposes to revise the PSR to allow PA-11 pipe (PA32316) for pressures up to 250 psi, diameters up to 6 inches, and additional limitations on wall thickness as listed in the petition. PHMSA also proposes to specify that both PA32312 and PA32316 can be used for pressures up to 200 psi. Regarding standards relevant to PA-11 that Arkema petitioned to be incorporated by reference, PHMSA proposes to incorporate them as requested. Incorporating these newer standards specific to PA-11 will also allow PHMSA to phase out older standards incorporated by reference like ASTM D2513-87 and ASTM D2513-99, which covered multiple plastic materials including PA, PE, and others, up until ASTM D2513-09a when it became a PE-only standard. Another rulemaking by PHMSA incorporated ASTM D2513-09a for PE but continued to reference ASTM D2513-87 and ASTM D2513-99 for plastics other than PE while these other product specific standards were being developed. Having multiple versions of the same standard in this interim period has created some confusion.
On January 6, 2011, PA-12 pipe manufacturers (Evonik and UBE; Petitioners) submitted a petition to amend the PSR to allow the use of PA-12 pipe. Specifically, Evonik and UBE petitioned (Docket No. PHMSA-2010-0009) PHMSA to revise §§ 192.121 and 192.123 to:
• Allow for the use of PA-12 piping systems with a 0.40 design factor;
• Include maximum design pressure limitations for PA-12 piping systems of 250 psig;
• Allow a nominal pipe size of 6-inch diameters or less;
• Allow a minimum wall thickness of at least 0.90 inches, with additional limitations on the wall thickness, depending on diameter;
• Require unplasticized material;
• Limit PA-12 pipe materials to those specified in ASTM F2785; and
• Require PA-12 to comply with the rest of the part 192 requirements related
In their petition, Evonik and UBE state that PA-12 material has been tested more than any other pipe material prior to its use and approval. The Petitioners also stated that the results “amply validated” the overall strength and durability of the PA-12 material and piping systems against known threats and failure mechanisms. Evonik and UBE noted in their petition that PA-12 has been granted for use under a special permit in the States of Montana and Mississippi. The petitioners also noted the development of a performance-based standard (ASTM F2785-09) for PA-12. The petitioners assert that this standard contains comprehensive performance-based requirements that would ensure the safe long-term performance of PA-12 pipe, tubing, and fittings.
Upon review of the petition, PHMSA proposes to revise the PSR to allow the use of PA-12 pipe at pressures up to 250 psig for pipe up to 6 inches in diameter, and to impose additional limitations on wall thickness as listed in the petition. These limitations would also be consistent with the PA-11 consideration described above. PHMSA also proposes to incorporate by reference ASTM F2785-12, “Standard Specification for Polyamide 12 Gas Pressure Pipe, Tubing, and Fittings,” along with other standards applicable to both PA-11 and PA-12 that are described immediately above in the section related to PA-11 considerations and the PA-11 petition.
In general, a pipeline riser is a vertical pipe that connects buried pipe to an aboveground component, such as a meter. In many cases, the riser is a transitional component that attaches a buried plastic pipe to a metal or a metal-encased plastic pipe (anodeless riser), which is connected to a gas meter. While risers are most commonly found connecting service lines to meter sets, risers are also used within distribution mains and transmission systems when entering or exiting small regulator stations or whenever a transition between buried and unburied pipe is necessary.
The PSR do not contain specific design, construction, or installation requirements for risers. In 2014, the GPTC petitioned PHMSA to allow above-ground, encased plastic pipe at the inlet and outlet of regulator and metering stations if (1) the above-ground level part of the plastic pipe is protected against deterioration and external damage; (2) the plastic pipe is not used to support external loads; and (3) the plastic pipe is not allowed to exceed the pipe temperature limits at § 192.123. Therefore, PHMSA proposes specific requirements for the design (§ 192.204) and construction of risers (§§ 192.321(j) and 192.375(a)(2)) associated with plastic pipe. Further, PHMSA proposes to incorporate by reference ASTM F1973, “Standard Specification for Factory Assembled Anodeless Risers and Transition Fittings in Polyethylene (PE) and Polyamide 11 (PA11) and Polyamide 12 (PA12) Fuel Gas Distribution Systems” in these new sections. ASTM F1973 addresses various issues such as the removal of burrs on metal components prior to the insertion of plastic pipe and other riser assembly provisions.
PHMSA and others (
More specifically, ASTM D2513, currently incorporated by reference in part 192, provides categorizations for the different mechanical joints, including “[s]eal plus resistance to a force on the pipe end equal to or greater than that which will cause permanent deformation of the pipe” (Category 1), seal only (Category 2), and seal plus pipe restraint to account for thermal stresses (Category 3). The Category 1 joint is generally considered the most stringent of the three categories. ASTM D2513 is now a polyethylene-only standard, but other standards being proposed for incorporation in this NPRM and that are applicable to other materials, (
In light of the proposed revisions of the PA-11 and PE regulations, and the introduction of PA-12, PHMSA proposes to also consider recently developed standards for incorporation by reference that further enhance pipeline safety in order to address potential safety risks. These proposed standards to be incorporated by reference are listed in “Section I.
Section 192.455 details external corrosion control requirements for buried or submerged pipe installed after July 31, 1971. Paragraph (a) currently requires such pipelines to have external protective coatings meeting the requirements of § 192.461 and a cathodic protection system placed in operation within 1 year after construction is completed. However, paragraph (a) contains certain exceptions. One is detailed in paragraph (f) and applies to electrically isolated, metal alloy fittings in plastic pipelines where an operator can show by test, investigation, or experience in the area of application, that adequate corrosion control is provided by the alloy composition, and the fitting is designed to prevent leakage caused by corrosion pitting. For those fittings that do not meet the requirements of paragraph (f), cathodic protection and cathodic protection monitoring is required. PHMSA proposes to add a new paragraph (g) to require such fittings used within plastic pipelines be cathodically protected and monitored in
PHMSA is proposing several revisions with regard to the installation of plastic pipe, organized topically as follows:
The PSR do not contain detailed requirements for the installation of plastic pipe by trenchless excavation. PHMSA and the States are aware of a number of incidents related to cross-boring, where plastic pipe installed via trenchless excavation (
Section 192.281 details the requirements for joining plastic pipe. In an effort to reduce confusion and promote safety, PHMSA is proposing several revisions to § 192.281.
Section 192.281(b) contains requirements for solvent cement joints. PHMSA proposes to revise § 192.281(b)(2) to specify that the solvent cement requirements in ASTM D2564-12 apply only to polyvinyl chloride (PVC) pipe. This is a clarifying revision, since PVC is the only material that is allowed by PSR to be joined by solvent cement.
Section 192.281(c) contains requirements for heat-fusion joints. Currently, these requirements refer to only the “pipe” that is being joined. PHMSA proposes to clarify paragraph (c) to specify that the joining requirements apply to both the pipe and the components that are joined to the pipe.
Section 192.281(e) contains requirements for mechanical joints but does not clearly list specific standards for the requirements. This has led to some inconsistencies in practices used, or the requirements were incorporated indirectly via another referenced standard and were not always clear. PHMSA proposes to add a new paragraph (e)(3) to require that each fitting used to make a mechanical joint meets a listed specification. With this requirement, PHMSA hopes to make it clearer that fittings and joints must meet a standard specification listed in the code. The standards that would apply are among the “Other Listed Specifications for Components” that are being proposed through revisions to Appendix B and described in more detail elsewhere in this document.
Section 192.283 details the requirements for qualifying plastic pipe joining procedures. Currently, § 192.283(a) specifies that heat fusion joints for thermoplastic pipe must be tested in accordance with ASTM D2513-99 for plastics other than polyethylene or with ASTM D2513-09a for polyethylene plastic materials. In this proposed rule, PHMSA is proposing to incorporate a newer version of ASTM D2513 for PE-only materials and incorporate standards applicable to other types of thermoplastic pipe (
PHMSA also proposes to remove the current § 192.283(d), which allows the use of pipe or fittings manufactured before July 1, 1980, if they are joined in accordance with procedures that the manufacturer certifies will produce a joint as strong as the pipe. As a number of advancements have been made in standards related to pipe and fittings since 1980, the use of newer materials manufactured in accordance with more current standards should be encouraged. Pipe and fittings that are newly installed, repaired, or replaced after the effective date of the rule will be required to meet newer standards. This proposed revision would not preclude the use of pipe or fittings manufactured prior to July 1, 1980, which were already installed prior to the effective date of the rule.
Section 192.285 details the requirements for qualifying persons to make joints. PHMSA proposes to revise § 192.285 to incorporate several revisions. Section 192.285(a)(2) currently specifies that a person must make a specimen joint that is subjected to the testing detailed in § 192.285(b). PHMSA proposes to remove the testing details in § 192.285(b) and reference ASTM F2620-12 (Standard Practice for Heat Fusion Joining of Polyethylene Pipe and Fittings). PHMSA also proposes to require operators to maintain records detailing the location of each joint and the person who made the joint.
Section 192.313 details requirements for bends and elbows, but currently only for steel pipe. To address bends in plastic pipe, PHMSA proposes to add a paragraph (d) to specify that installed plastic pipe may not contain bends that exceed the maximum radius specified by the manufacturer for the diameter of the pipe.
Section 192.321 details requirements for the installation of plastic pipe transmission lines and mains. PHMSA is proposing several revisions to this section. Currently, § 192.321(d) specifies that non-encased thermoplastic pipe must have a minimum wall thickness of 0.090 inches, except for pipe with an outside diameter of 0.875 inches or less, which must have a minimum wall thickness of 0.062 inches. PHMSA proposes to require all plastic pipe to have a minimum wall thickness of 0.090 inches.
Section 192.321(f) specifies that plastic pipe being encased must be inserted into the casing pipe in a manner that will protect the plastic, and that the leading edge of the inserted pipe must be closed before insertion. PHMSA proposes to specify that the plastic pipe must be protected from damage at both the entrance and exit of the casing during the installation process.
Section 192.321(h) specifies requirements for plastic pipe installed on bridges. Paragraph (h)(3) contains a reference to § 192.123. Based on the proposed merging of § 192.123 into § 192.121, PHMSA proposes to revise paragraph (h)(3) to replace the currently referenced § 192.123 with § 192.121.
Although part 192 contains some requirements for backfill materials,
PHMSA understands that there are applications that may require plastic mains to terminate aboveground for permanent installations. Currently, § 192.321 does not address plastic mains which terminate above ground. Therefore, PHMSA proposes a new paragraph (j) to allow for the aboveground level termination of plastic mains under certain conditions.
Section 192.367(b) specifies requirements for compression-type connections to a main. As described further in the Fittings section above, PHMSA and others (
Due to the difficulty in assessing the quality of field joints, it is very important for operators to use properly calibrated and maintained equipment. Currently, the PSR do not contain detailed minimum provisions for maintaining equipment used in joining plastic pipe. Therefore, PHMSA proposes to add a new § 192.756 to include such requirements. These provisions would require each operator to maintain the applicable equipment, including measuring devices for joining plastic pipe, in accordance with the manufacturers' recommended practices or alternative procedures that have been proven by testing and experience. Operators would also be required to calibrate and test such equipment and devices and maintain records that substantiate these calibrations and tests. The equipment subject to these requirements would include, but not be limited to, fusion equipment, alignment equipment, facing and adaptor equipment, heater plates, and gauging devices. PHMSA proposes that records of all tests and calibrations, except those that might occur through daily verifications and adjustments, be maintained for the life of the pipeline.
Section 192.311 currently specifies that, for plastic pipe, each imperfection or damage that would impair the serviceability of plastic pipe must be repaired or removed. For consistency with industry best practices, PHMSA proposes to include a requirement for all plastic pipe and or components to be replaced if they have a scratch or gouge exceeding 10 percent of the wall thickness.
PHMSA and States have observed issues where some operators have used stainless steel band clamps, intended and designed for temporary repairs on plastic pipe used in gas distribution, as a permanent repair solution. While clamps can be an effective temporary solution in certain situations, such as during an incident to stop the release of gas, PHMSA believes that these clamps should be used only as a temporary repair measure until the pipe can be replaced. PHMSA is also aware of at least one manufacturer that has issued a letter saying its repair clamps are intended for temporary repairs only and should be replaced with a more permanent solution. Therefore, PHMSA proposes the incorporation of a new section (§ 192.720) to prohibit the use of leak-repair clamps as a means for permanent repair on gas pipe used in distribution service.
PHMSA is proposing a number of general revisions to the PSR as follows:
Consistent with the proposed amendments in this document, PHMSA proposes to incorporate by reference several standards. The standards are identified as follows:
• ASTM D2513-12ael “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings”—This specification covers requirements and test methods for material dimensions and tolerances, hydrostatic burst strength, chemical resistance, and rapid crack resistance of polyethylene pipe, tubing, and fittings for use in fuel gas mains and services for direct burial and reliner applications. The pipe and fittings covered by this specification are intended for use in the distribution of natural gas. Requirements for the qualifying of polyethylene systems for use with liquefied petroleum gas are also covered.
• ASTM F2785-12 “Standard Specification for Polyamide 12 Gas Pressure Pipe, Tubing, and Fittings”—This specification covers requirements and test methods for the characterization of polyamide 12 pipe, tubing, and fittings for use in fuel gas mains and services for direct burial and reliner applications. The pipe and fittings covered by this specification are intended for use in the distribution of natural gas.
• ASTM F2945-12a “Standard Specification for Polyamide 11 Gas Pressure Pipe, Tubing, and Fittings” 11/27/2012.—This specification covers requirements and test methods for the characterization of polyamide 11 pipe, tubing, and fittings for use in fuel gas piping.
• ASTM F2620-12 “Standard Practice for Heat Fusion Joining of Polyethylene Pipe and Fittings” 11/01/2013.—This practice describes procedures for making joints with polyethylene (PE) pipe and fittings by means of heat fusion joining in, but not limited to, a field environment. The parameters and procedures are applicable only to joining PE pipe and fittings of related polymer chemistry.
• ASTM D2564-12 “Standard Specification for Solvent Cements for Poly (Vinyl Chloride) (PVC) Plastic Piping Systems” 08/01/2012.—This specification covers requirements for
• ASTM F2817-10 “Standard Specification for Poly (Vinyl Chloride) (PVC) Gas Pressure Pipe and Fittings For Maintenance or Repair” (PVC components only) 08/01/2013—This specification covers requirements for PVC pipe and tubing for use only to maintain or repair existing PVC gas piping.
• ASTM F2897-11a “Standard Specification for Tracking and Traceability Encoding System of Natural Gas Distribution Components (Pipe, Tubing, Fittings, Valves, and Appurtenances)” 11/01/2011—This specification defines requirements for the data used in the tracking and traceability base-62 encoding system and the format of the resultant code to characterize various components used in fuel gas piping systems.
• ASTM/ANSI F2600-09 “Standard Specification for Electrofusion Type Polyamide-11 Fittings for Outside Diameter Controlled Polyamide-11 Pipe and Tubing” 4/1/2009.—This specification covers polyamide-11 electrofusion fittings for use with outside diameter-controlled polyamide-11 pipe, covered by Specification D2513. Requirements for materials, workmanship, and testing performance are included.
• ASTM F2767-12 “Specification for Electrofusion Type Polyamide-12 Fittings for Outside Diameter Controlled Polyamide-12 Pipe and Tubing for Gas Distribution” 10/15/2012.—This specification applies to polyamide-12 electrofusion fittings for use with outside diameter-controlled polyamide-12 pipes, addressed by Specification F2785.
• ASTM/ANSI F2145-13 “Standard Specification for Polyamide 11 (PA 11) and Polyamide 12 (PA12) Mechanical Fittings for Use on Outside Diameter Controlled Polyamide 11 and Polyamide 12 Pipe and Tubing” 05/01/2013.—This specification describes requirements and test methods for the qualification of Polyamide 11 (PA 11) bodied mechanical fittings for use with outside diameter controlled PA 11, nominal 2 pipe size (IPS) and smaller complying with Specification D2513. The requirements and test methods for the qualification of Polyamide 12 (PA12) bodied mechanical fittings for use with outside diameter controlled Polyamide 11 (PA11), nominal 2 in pipe size (IPS) and smaller complying with Specification D2513 and outside diameter controlled PA12, nominal 2 in pipe size (IPS) and smaller complying with Specification F2785. In addition, it specifies general requirements of the material from which these fittings are made.
• ASTM/ANSI F1948-12 “Standard Specification for Metallic Mechanical Fittings for Use on Outside Diameter Controlled Thermoplastic Gas Distribution Pipe and Tubing” 04/01/2012.—This specification covers requirements and test methods for the qualification of metallic mechanical fittings for use with outside diameter controlled thermoplastic gas distribution pipe and tubing as specified in Specification D2513.
• ASTM F1973-13 “Standard Specification for Factory Assembled Anodeless Risers and Transition Fittings in Polyethylene (PE) and Polyamide 11 (PA11) and Polyamide 12 (PA12) Fuel Gas Distribution Systems” 05/01/2013.—This specification covers requirements and test methods for the qualification of factory assembled anodeless risers and transition fittings, for use in polyethylene (PE), in sizes through NPS 8, and Polyamide 11 (PA11) and Polyamide 12 (PA12), in sizes through NPS 6, gas distribution systems.
• ASME/ANSI B 16.40-08 “Manually Operated Thermoplastic Gas Shutoffs and Valves in Gas Distribution Systems” 04/30/2008.—This standard covers manually operated thermo-plastic valves in nominal valve sizes
• PPI TR-4/2012 “PPI Listing of Hydrostatic Design Basis (HDB), Hydrostatic Design Stress (HDS), Strength Design Basis (SDB), Pressure Design Basis (PDB) and Minimum Required Strength (MRS) Rating For Thermoplastic Piping Materials or Pipe.”—This report lists thermoplastic piping materials with a Plastics Pipe Institute (PPI) recommended Hydrostatic Design Basis (HDB), Strength Design Basis (SDB), Pressure Design Basis (PDB) or Minimum Required Strength (MRS) rating for thermoplastic piping materials or pipe. These listings have been established in accordance with PPI TR-3.
PHMSA also proposes to update the following standards which are summarized below:
• ASTM F1055-98 (2006) “Standard Specification for Electrofusion Type Polyethylene Fittings for Outside Diameter Controlled Polyethylene Pipe and Tubing” This specification covers electrofusion polyethylene fittings for use with outside diameter-controlled polyethylene pipe, covered by Specifications D 2447, D 2513, D 2737, D 3035, and F 714. This specification is a 2006 reaffirmed version of the 1998 version, meaning the technical content of the standard itself hadn't changed but as a matter of process had to be reviewed by the ASTM technical committee to keep it active. It should be noted there is a more current version of the F1055 standard (ASTM F1015-13) but PHMSA has chosen not to propose that version as the name and scope have expanded to include Crosslinked Polyethylene (PEX) Pipe and Tubing, a material not otherwise recognized in the 49 CFR part 192. PHMSA is open to comments on whether or not the latest version should be considered; and
• PPI TR-3/2012 “Policies and Procedures for Developing Hydrostatic Design Basis (HDB), Hydrostatic Design Stresses (HDS), Pressure Design Basis (PDB), Strength Design Basis (SDB), Minimum Required Strength (MRS) Ratings, and Categorized Required Strength (CRS) for Thermoplastic Piping Materials or Pipe”—This report presents the policies and procedures used by the HSB (Hydrostatic Stress Board) of PPI (Plastics Pipe Institute, Inc.) to develop recommendations of long-term strength ratings for commercial thermoplastic piping materials or pipe. This version is an update to the 2008 version currently incorporated by reference. A more detailed summary of updates to the 2010 version (successor to the 2008 version) is available in the 2012 document itself. Recommendations are published in PPI TR-4.
Section 192.59 specifies requirements for plastic pipe materials. Paragraph (a) details the qualification-for-use requirements for new plastic pipe. PHMSA proposes to add a new paragraph (a)(3) to require new plastic pipe be free from visible defects, a requirement consistent with a similar requirement already in place for used plastic pipe as detailed in paragraph (b)(5). At this time, non-destructive evaluation technologies have not been proven to be reliable and effective for inspecting plastic pipe. Therefore, visual inspection continues to be the primary method for detecting and evaluating defects.
In § 192.59, paragraph (b) details specific qualification requirements for used plastic pipe. Section 192.59(b)(3) specifies that used plastic pipe is qualified for use if it has been used only in natural gas service. PHMSA believes that used plastic pipe should not be limited to “natural gas” service but in any “gas” service as defined in § 192.3. This is consistent with the applicability provisions in § 192.1, which specifies
PHMSA is also looking to address some issues surrounding PVC pipe and components used for repair situations. Historically, PVC pipe and components have technically been allowed by code, including for repair, but industry has slowly been phasing out the installation and use of PVC piping, including for repair, in favor of other newer and better-performing plastic materials. PVC components are still used to a larger extent, however, as they are not as susceptible to the same issues of brittle-like cracking as PVC piping. To align with this shift, PHMSA is proposing to add a new § 192.59(e) to explicitly prohibit the use of PVC pipe for new installations after the effective date of the rule, including for repairs. This new requirement would not prevent the use of previously installed PVC pipe, nor would it preclude the use of PVC components for the repair of existing PVC pipe. Requirements for PVC were previously addressed under ASTM D2513-99, but following the change to make ASTM D2513 a PE-only standard, there is now a standalone ASTM standard for PVC. For PVC components used to repair existing PVC pipe, PHMSA is proposing to incorporate ASTM F2817-10, “Standard Specification for Poly (Vinyl Chloride) (PVC) Gas Pressure Pipe and Fittings For Maintenance or Repair.”
Currently, the PSR do not directly address the storage and handling of plastic pipe other than through standards incorporated by reference. In an effort to reduce any confusion regarding the proper storage and handling of plastic pipe, PHMSA proposes a new § 192.67. The proposed new section would require operators to have written procedures for storage and handling that meets the applicable listed specification.
Section 192.9 currently details the requirements applicable to gathering lines. In particular, § 192.9(d) specifies the requirements for Type B regulated onshore gathering lines. Currently, as specified under § 192.9(d)(1), gathering line operators are required to comply with the design, installation, construction, initial inspection, and initial testing requirements in part 192 applicable to transmission lines. This would include plastic pipe requirements such as for design (§ 192.121), joining (§§ 192.281 and 192.283), and installation (§ 192.321). PHMSA believes that this information may not be clear since most transmission lines do not consist of plastic pipe. Therefore, PHMSA proposes to add a new paragraph (d)(7) to specify that such pipelines, if containing plastic pipe or components, must comply with all requirements of part 192 applicable to plastic pipe.
Currently, § 192.121 specifies the calculations for determining the design pressure for plastic pipe, while § 192.123 specifies the design limitations for plastic pipe. In an effort to make the PSR easier to follow and to increase clarity, PHMSA proposes to merge the § 192.123 design limitations into § 192.121. PHMSA also proposes to increase the maximum design factor for PE pipe, increase the design pressure limitations of PA-11 pipe, and add design factor and pressure limitations for the use of PA-12 plastic pipe. These proposals would apply to materials produced after the effective date of the final rule.
Section 192.143 contains general design provisions for pipeline components. For clarification purposes, PHMSA proposes the addition of a new paragraph (c) to specify that components used for plastic pipe must be able to withstand operating pressures and anticipated loads in accordance with a listed specification. Currently, § 192.191 specifies design pressure requirements for plastic fittings. With the addition of § 192.143(c), § 192.191 would be redundant; therefore, PHMSA proposes its removal.
Section 192.145 contains general design provisions for pipeline valves. For clarification purposes, PHMSA proposes the addition of a new paragraph (f) to specify that plastic valves must meet a “listed specification” as defined in § 192.3. PHMSA also proposes to clarify that plastic valves must not be used in operating conditions that exceed the applicable pressure or temperature ratings detailed in the applicable listed specification, consistent with language in § 192.145(a).
Section 192.149 contains general design provisions for pipeline fittings. For clarification purposes, PHMSA proposes the addition of a new paragraph (c) to specify that a plastic fitting may only be used if it meets a listed specification.
Section 192.513(c) currently states that the test pressure for plastic pipelines must be at least 150 percent of the maximum operating pressure or 50 psig, whichever is greater, and that the maximum test pressure may not be more than 3 times the pressure determined under § 192.121. Given the other design limitations in the current § 192.123 for PE and PA-11, and the revisions being proposed in this rule for PE, PA-11, and PA-12, PHMSA believes that plastic pipe will potentially be overstressed if tested to 3 times the pressure determined under § 192.121. Therefore, PHMSA proposes to revise § 192.513(c) so that the maximum limit for test pressure is 2.5 times the pressure determined under § 192.121.
PHMSA currently incorporates by reference into 49 CFR parts 192, 193, and 195 all or parts of more than 60 standards and specifications developed and published by standard developing organizations (SDOs). In general, SDOs update and revise their published standards every 3 to 5 years to reflect modern technology and best technical practices.
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) directs Federal agencies to use voluntary consensus standards in lieu of government-written standards whenever possible. Voluntary consensus standards are standards developed or adopted by voluntary bodies that develop, establish, or coordinate technical standards using agreed-upon procedures. In addition, Office of Management and Budget (OMB) issued OMB Circular A-119 to implement Section 12(d) of Public Law 104-113 relative to the utilization of consensus technical standards by Federal agencies. This circular provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in Public Law 104-113.
In accordance with the preceding provisions, PHMSA has the responsibility for determining, via petitions or otherwise, which currently referenced standards should be updated, revised, or removed, and which standards should be added to 49 CFR parts 192, 193, and 195. Revisions to
On January 3, 2012, President Obama signed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Public Law 112-90. Section 24 states: “Beginning 1 year after the date of enactment of this subsection, the Secretary may not issue guidance or a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet Web site.” 49 U.S.C. 60102(p).
On August 9, 2013, Public Law 113-30 revised 49 U.S.C. 60102(p) to replace “1 year” with “3 years” and remove the phrases “guidance or” and “,on an Internet Web site.” This resulted in the current language in 49 U.S.C. 60102(p), which now reads as follows:
“Beginning 3 years after the date of enactment of this subsection, the Secretary may not issue a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge.”
Further, the Office of the Federal Register issued a November 7, 2014, rulemaking (79 FR 66278) that revised 1 CFR 51.5 to require that agencies detail in the preamble of a proposed rulemaking the ways the materials it proposes to incorporate by reference are reasonably available to interested parties, or how the agency worked to make those materials reasonably available to interested parties. In relation to this proposed rulemaking, PHMSA has contacted each SDO and has requested a hyperlink to a free copy of each standard that has been proposed for incorporation by reference. Access to these standards will be granted until the end of the comment period for this proposed rulemaking. Access to these documents can be found on the PHMSA Web site at the following URL:
This NPRM is published under the authority of the Federal pipeline safety law (49 U.S.C. 60101
This NPRM is not a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and therefore was not reviewed by the Office of Management and Budget. This NPRM is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).
Executive Orders 12866 and 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” PHMSA proposes to amend the PSR with regards to plastic pipe to improve compliance with these regulations by updating and adding references to technical standards and providing clarification. PHMSA anticipates that the amendments contained in this NPRM will have economic benefits to the regulated community by increasing the clarity of its regulations and reducing compliance costs. A copy of the regulatory evaluation is available for review in the docket.
The Regulatory Flexibility Act (5 U.S.C. 601
While PHMSA does not collect information on the number of employees or revenues of pipeline operators, it does continuously seek information on the number of small pipeline operators to more fully determine any impacts PHMSA's proposed regulations may have on small entities. This NPRM proposes to require small and large operators to comply with these requirements. A copy of the Initial Regulatory Flexibility Analysis has been placed in the docket.
PHMSA has analyzed this NPRM according to the principles and criteria in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Because this NPRM does not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
This NPRM does not impose any new information collection requirements.
This NPRM does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million, adjusted for inflation, or more in any one year to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the NPRM.
PHMSA analyzed this proposed rule in accordance with section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. 4332), the Council on Environmental Quality regulations (40 CFR parts 1500-1508), and DOT Order 5610.1C, and has preliminarily determined that this action will not significantly affect the quality of the human environment. A preliminary environmental assessment of this rulemaking is available in the docket, and PHMSA invites comment on environmental impacts of this rule, if any.
Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's
PHMSA has analyzed this NPRM according to Executive Order 13132 (“Federalism”). The NPRM does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. This NPRM does not impose substantial direct compliance costs on State and local governments. This NPRM does not preempt State law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This NPRM is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this NPRM as a significant energy action.
Incorporation by reference, Pipeline safety, Plastic pipe, Security measures.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR Chapter I as follows:
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, and 60118; and 49 CFR 1.97.
(c) * * *
(3) ASME/ANSI B 16.40-08, “Manually Operated Thermoplastic Gas Shutoffs and Valves in Gas Distribution Systems,” (ASME/ANSI B16.40-08), IBR approved for Item I, Appendix B to Part 192.
(d) * * *
(11) ASTM D2513-12ae1, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings,” (ASTM D2513-12ae1), IBR approved for Item I, Appendix B to Part 192.
(13) ASTM D2564-12, “Standard Specification for Solvent Cements for Poly(Vinyl Chloride) (PVC) Plastic Piping Systems,” (ASTM D2564-12), IBR approved for § 192.281(b)(2).
(14) ASTM F1055-98 (2006), “Standard Specification for Electro fusion Type Polyethylene Fittings for Outside Diameter Controlled Polyethylene Pipe and Tubing,” (ASTM F1055-98), IBR approved for Item I, Appendix B to Part 192.
(15) ASTM F1924-12, “Standard Specification for Plastic Mechanical Fittings for Use on Outside Diameter Controlled Polyethylene Gas Distribution Pipe and Tubing,” (ASTM F1924-12), IBR approved for §§ 192.281(e); 192.367(b)(3); and Item I, Appendix B to Part 192.
(16) ASTM F1948-12, “Standard Specification for Metallic Mechanical Fittings for Use on Outside Diameter Controlled Thermoplastic Gas Distribution Pipe and Tubing,” (ASTM F1948-12), IBR approved for §§ 192.281(e); 192.367(b)(3); and Item I, Appendix B to Part 192.
(17) ASTM F1973-13, “Standard Specification for Factory Assembled Anodeless Risers and Transition Fittings in Polyethylene (PE) and Polyamide 11 (PA 11) and Polyamide 12 (PA 12) Fuel Gas Distribution Systems,” (ASTM F1973-13), IBR approved for §§ 192.204(b); 192.281(e); 192.367(b)(3); and Item I, Appendix B to Part 192.
(18) ASTM/ANSI F2145-13, “Standard Specification for Polyamide 11 (PA-11) and Polyamide 12 (PA-12) Mechanical Fittings for Use on Outside Diameter Controlled Polyamide 11 and Polyamide 12 Pipe and Tubing,” (ASTM/ANSI F2145-13), IBR approved for Item I, Appendix B to Part 192.
(19) ASTM/ANSI F2600-09, “Standard Specification for Electrofusion Type Polyamide-11 Fittings for Outside Diameter Controlled Polyamide-11 Pipe and Tubing,” (ASTM/ANSI F2600-09), IBR approved for Item I, Appendix B to Part 192.
(20) ASTM F2620-12, “Standard Practice for Heat Fusion Joining of Polyethylene Pipe and Fittings,” (ASTM F2620-12), IBR approved for §§ 192.281(c) and 192.285(b)(2)(i).
(21) ASTM F2767-12, “Specification for Electrofusion Type Polyamide-12 Fittings for Outside Diameter Controlled Polyamide-12 Pipe and Tubing for Gas Distribution,” (ASTM F2767-12), IBR approved for Item I, Appendix B to Part 192.
(22) ASTM F2785-12, “Standard Specification for Polyamide 12 Gas Pressure Pipe, Tubing, and Fittings” PA-12, (ASTM F2785-12), IBR approved for Item I, Appendix B to Part 192.
(23) ASTM F2817-10, “Standard Specification for Poly (Vinyl Chloride) (PVC) Gas Pressure Pipe and Fittings For Maintenance or Repair,” (ASTM F2817-10), IBR approved for Item I, Appendix B to Part 192.
(24) ASTM F2897-11a, “Standard Specification for Tracking and Traceability Encoding System of Natural Gas Distribution Components (Pipe, Tubing, Fittings, Valves, and Appurtenances),” (ASTM F2897-11a), IBR approved for §§ 192.3 and 192.63(e).
(25) ASTM F2945-12a “Standard Specification for Polyamide 11 Gas Pressure Pipe, Tubing, and Fittings,” PA-11, (ASTM F2945-12a), IBR approved for Item I, Appendix B to Part 192.
(j) * * *
(1) PPI TR-3/2012, “Policies and Procedures for Developing Hydrostatic Design Basis (HDB), Hydrostatic Design
(2) PPI TR-4/2012, “PPI Listing of Hydrostatic Design Basis (HDB), Hydrostatic Design Stress (HDS), Strength Design Basis (SDB), Pressure Design Basis (PDB) and Minimum Required Strength (MRS) Rating For Thermoplastic Piping Materials or Pipe,” (PPI TR-4/2012), IBR approved for § 192.121.
(d) * * *
(5) Establish the MAOP of the line under § 192.619;
(6) Install and maintain line markers according to the requirements for transmission lines in § 192.707; and
(7) If the pipeline contains plastic pipe or components, the operator must comply with all applicable requirements of this part for plastic pipe and components.
(a) * * *
(1) It is manufactured in accordance with a listed specification;
(2) It is resistant to chemicals with which contact may be anticipated; and
(3) It is free of visible defects.
(b) * * *
(3) It has been used only in gas service;
(e) Except for PVC fittings used for repairs on existing PVC pipelines with materials manufactured in accordance with the listed specification, PVC pipe cannot be used.
(a) Except as provided in paragraph (d) of this section, each valve, fitting, length of pipe, and other component must be marked as prescribed in the specification or standard to which it was manufactured.
(e) Additional requirements for plastic pipe and components.
(1) All markings on plastic pipe prescribed in the listed specification and the requirements of paragraph (e)(2) shall be repeated at intervals not exceeding 2 feet.
(2) Plastic pipe and components manufactured after [INSERT EFFECTIVE DATE OF FINAL RULE], must be marked in accordance with ASTM F2897 (incorporated by reference, see § 192.7) in addition to the listed specification.
(3) All markings on plastic pipelines prescribed in the specification and paragraph (e)(2) shall be legible, visible, and permanent in accordance with the listed specification. Records of markings prescribed in the specification and paragraph (e)(2) shall be maintained for the life the pipeline per the requirements of §§ 192.321(k) and 192.375(d).
Each operator must develop and follow written procedures for the storage and handling of plastic pipe and/or associated components that meet the applicable listed specifications.
(a)
(b)
(i) Distribution systems; or
(ii) Transmission lines in Class 3 and 4 locations.
(2) Plastic pipe may not be used where operating temperatures of the pipe will be:
(i) Below −20 °F (−29 °C), or −40 °F (−40 °C) if all pipe and pipeline components whose operating temperature will be below −20 °F (−29 °C) have a temperature rating by the manufacturer consistent with that operating temperature; or
(ii) Above the temperature at which the HDB used in the design formula under this section is determined.
(3) Unless specified for a particular material in this section, the wall thickness for plastic pipe may not be less than 0.062 inches (1.57 millimeters).
(4) All plastic pipe must have a listed HDB in accordance with PPI TR-4 (incorporated by reference,
(c)
(i) The material designation code is a PE2406 or PE3408.
(ii) The pipe has a nominal size (IPS or CTS) of 12 inches or less (above nominal pipe size of 12 inches, the design pressure is limited to 100 psig); and
(iii) The wall thickness is not less than 0.062 inches (1.57 millimeters).
(2) For PE pipe produced after [INSERT EFFECTIVE DATE OF FINAL RULE], a DF of 0.40 may be used in the design formula, provided:
(i) The design pressure is limited to 125 psig;
(ii) The material designation code is PE2708 or PE4710;
(iii) The pipe has a nominal size (IPS or CTS) of 12 inches or less; and
(iv) The wall thickness for a given outside diameter is not less than that listed in the following table:
(d)
(i) The design pressure is limited to 200 psig;
(ii) The material designation code is PA32312 or PA32316;
(iii) The pipe has a nominal size (IPS or CTS) of 4 inches or less; and
(iv) The pipe has a standard dimension ratio of SDR-11 or less (
(2) For PA-11 pipe produced on or after [INSERT EFFECTIVE DATE OF FINAL RULE], a DF of 0.40 may be used in the design formula, provided:
(i) The design pressure is limited to 250 psig;
(ii) The material designation code is PA32316;
(iii) The pipe has a nominal size (IPS or CTS) of 6 inches or less; and
(iv) The minimum wall thickness for a given outside diameter is not less than that listed in the following table:
(e)
(1) The design pressure is limited to 250 psig;
(2) The pipe has a nominal size (IPS or CTS) of 6 inches or less; and
(3) The minimum wall thickness for a given outside diameter is not less than that listed in the following table.
(f) Reinforced thermosetting plastic pipe requirements.
(i) Reinforced thermosetting plastic pipe may not be used at operating temperatures above 150 °F (66 °C).
(ii) The wall thickness for reinforced thermosetting plastic pipe may not be less than that listed in the following table:
(c) Each plastic component of a pipeline must be able to withstand operating pressures and other anticipated loads in accordance with a listed specification.
(f) Plastic valves must meet the minimum requirements stipulated in a listed specification. A valve may not be used under operating conditions that exceed the applicable pressure and temperature ratings contained in those requirements.
(c) Plastic fittings must meet a listed specification.
(a) The design shall be tested to ensure safe performance under anticipated external and internal loads acting on the assembly.
(b) Risers shall be designed and tested in accordance with ASTM F1973 (incorporated by reference,
(c) All risers connected to plastic mains and used on regulator stations must be rigid and have a minimum 3 ft. horizontal base leg designed to provide adequate support and resist lateral movement. Riser design shall be tested and accepted in accordance with ASTM F1973 (incorporated by reference,
(b) * * *
(2) The solvent cement must conform to ASTM D2564-12 for PVC (incorporated by reference,
(3) The joint may not be heated or cooled to accelerate the setting of the cement.
(c)
(1) A butt heat-fusion joint must be joined by a device that holds the heater element square to the ends of the pipe and/or component, compresses the heated ends together, and holds the pipe in proper alignment in accordance with the qualified procedures.
(2) A socket heat-fusion joint equal to or less than 1
(3) An electrofusion joint must be made utilizing the equipment and techniques prescribed by the fitting manufacturer, or utilizing equipment and techniques shown, by testing joints to the requirements of § 192.283(b) to be equivalent to or better than the requirements of the fitting manufacturer.
(4) Heat may not be applied with a torch or other open flame.
(e) * * *
(3) All mechanical fittings must meet a listed specification based upon the pipe material.
(4) All mechanical joints or fittings shall be Category 1 as defined by ASTM F1924, ASTM F1948, or ASTM F1973 (incorporated by reference,
(a)
(1) The test requirements of—
(i) In the case of thermoplastic pipe, based upon the pipe material, the Sustained Pressure Test or the Minimum Hydrostatic Burst Test per the listed specification requirements. Additionally, for electrofusion joints, based upon the pipe material, the Tensile Strength Test or the Joint Integrity Test per the listed specification.
(ii) In the case of thermosetting plastic pipe, paragraph 8.5 (Minimum Hydrostatic Burst Pressure) or paragraph 8.9 (Sustained Static Pressure Test) of ASTM D2517 (incorporated by reference,
(2) For procedures intended for lateral pipe connections, subject a specimen joint made from pipe sections joined at right angles according to the procedure to a force on the lateral pipe until failure occurs in the specimen. If failure initiates outside the joint area, the procedure qualifies for use.
(3) For procedures intended for non-lateral pipe connections, perform testing in accordance to a listed specification. If elongation of the test specimen of no more than 25% or failure initiates outside the joint area, the procedure qualifies for use.
(b) Mechanical joints. Before any written procedure established under § 192.273(b) is used for making mechanical plastic pipe joints, the procedure must be qualified in accordance with a listed specification, based upon the pipe material.
(c) A copy of each written procedure being used for joining plastic pipe must be available to the persons making and inspecting joints.
(b) * * *
(2) * * *
(i) Tested under any one of the test methods listed under § 192.283(a) or the inspection and test set forth in accordance with ASTM F2620-12 (incorporated by reference,
(a) Each imperfection or damage that would impair the serviceability of plastic pipe must be repaired or removed.
(b) All scratches or gouges exceeding 10% of wall thickness of pipe and/or components shall be repaired or removed.
(d) Plastic pipe may not be installed containing bends that exceed the maximum radius specified by the manufacturer for the diameter of the pipe being installed.
(a) Plastic pipe must be installed below ground level except as provided by paragraphs (g), (h), and (j) of this section.
(d) Plastic pipe must have a minimum wall thickness of 0.090 inches (2.29 millimeters).
(f) Plastic pipe that is being encased must be inserted into the casing pipe in a manner that will protect the plastic. Plastic pipe that is being encased must be protected from damage at all entrance and all exit points of the casing. The leading end of the plastic must be closed before insertion.
(h) * * *
(3) Not allowed to exceed the pipe temperature limits specified in § 192.121.
(i) Backfill material must:
(1) Not contain materials that could be detrimental to the pipe, such as rocks of a size exceeding those established through sound engineering practices; and
(2) Be properly compacted underneath, along the sides, and for predetermined distance above the pipe.
(j) Plastic mains may terminate above ground level provided they comply with the following:
(1) The aboveground level part of the plastic main is protected against deterioration and external damage.
(2) The plastic main is not used to support external loads.
(3) Installations of risers at regulator stations must meet the design requirements of § 192.204.
(k) Tracking and Traceability. Each operator must maintain records for tracking and traceability information (as defined in § 192.3) for the life of the pipeline.
Plastic pipelines installed by trenchless excavation must comply with the following:
(a) Each operator shall ensure that the path of the excavation will provide sufficient clearance for installation and maintenance activities from other underground utilities and/or structures.
(b) For each pipeline section, plastic pipe and/or components that are pulled through the ground must have a weak link, as defined by § 192.3, installed to ensure the pipeline will not be damaged
(b) * * *
(1) Be designed and installed to effectively sustain the longitudinal pull-out or thrust forces caused by contraction or expansion of the piping, or by anticipated external or internal loading;
(2) If gaskets are used in connecting the service line to the main connection fitting, have gaskets that are compatible with the kind of gas in the system; and
(3) If used on pipelines comprised of plastic, be a Category 1 connection as defined by ASTM F1924, ASTM F1948, or ASTM F1973 (incorporated by reference,
(a) * * *
(2) It may terminate above ground level and outside the building, if—
(i) The aboveground level part of the plastic service line is protected against deterioration and external damage;
(ii) The plastic service line is not used to support external loads; and
(iii) The riser portion of the service line meets the design requirements of § 192.204.
(c) Backfill material must:
(1) Not contain materials that could be detrimental to the pipe, such as rocks of a size exceeding those established through sound engineering practices; and
(2) Be properly compacted underneath, along the sides, and for predetermined distance above the pipe.
(d) Tracking and Traceability. Each operator must maintain records for tracking and traceability information (as defined in § 192.3) for the life of the pipeline.
Plastic service lines installed by trenchless excavation must comply with the following:
(a) Each operator shall ensure that the path of the excavation will provide sufficient clearance for installation and maintenance activities from other underground utilities and/or structures.
(b) For each pipeline section, plastic pipe and/or components that are pulled through the ground must have a weak link, as defined by § 192.3, installed to ensure the pipeline will not be damaged by any excessive forces during the pulling process.
(g) Electrically isolated metal alloy fittings in plastic pipelines under this section not meeting the criteria contained in paragraph (f) must be cathodically protected and monitored in accordance with this section and § 192.465(a).
(c) The test pressure must be at least 150 percent of the maximum operating pressure or 50 p.s.i. (345 kPa) gage, whichever is greater. However, the maximum test pressure may not be more than 2.5 times the pressure determined under § 192.121 at a temperature not less than the pipe temperature during the test.
A leak repair clamp may not be used as a permanent repair method for plastic pipe.
(a) Each operator must maintain equipment used in joining plastic pipe in accordance with the manufacturer's recommended practices or with written procedures that have been proven by test and experience to produce acceptable joints.
(b) Each operator must calibrate and test all equipment used to join plastic pipe in accordance with paragraph (a) of this section. The calibration must be appropriate for the use of the equipment and/or is within the acceptable tolerance limit of that equipment as stated by the manufacturer.
(c) The term “equipment,” as specified in this section, includes, but is not limited to, fusion equipment, alignment equipment, facing and adaptor equipment, heater plates, and gauging devices.
(d) The operator must maintain records of these tests and calibrations (other than daily verifications and adjustments) for the life of the pipeline.
API 5L—Steel pipe, “API Specification for Line Pipe” (incorporated by reference,
ASTM A53/A53M—Steel pipe, “Standard Specification for Pipe, Steel Black and Hot-Dipped, Zinc-Coated, Welded and Seamless” (incorporated by reference,
ASTM A106—Steel pipe, “Standard Specification for Seamless Carbon Steel Pipe for High Temperature Service” (incorporated by reference,
ASTM A333/A333M—Steel pipe, “Standard Specification for Seamless and Welded Steel Pipe for Low Temperature Service” (incorporated by reference,
ASTM A381—Steel pipe, “Standard Specification for Metal-Arc-Welded Steel Pipe for Use with High-Pressure Transmission Systems” (incorporated by reference,
ASTM A671—Steel pipe, “Standard Specification for Electric-Fusion-Welded Pipe for Atmospheric and Lower Temperatures” (incorporated by reference,
ASTM A672—Steel pipe, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (incorporated by reference,
ASTM A691—Steel pipe, “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High Pressure Service at High Temperatures” (incorporated by reference,
ASTM D2513-12ae1, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings” (incorporated by reference, see § 192.7).
ASTM D2517—Thermosetting plastic pipe and tubing, “Standard Specification for Reinforced Epoxy Resin Gas Pressure Pipe and Fittings” (incorporated by reference,
ASTM F2785-12, “Standard Specification for Polyamide 12 Gas Pressure Pipe, Tubing, and Fittings” (PA-12) (incorporated by reference,
ASTM F2945-12a, “Standard Specification for Polyamide 11 Gas Pressure Pipe, Tubing, and Fittings” (PA-11) (incorporated by reference,
ASME/ANSI B16.40-08, “Manually Operated Thermoplastic Gas Shutoffs and Valves in Gas Distribution Systems” (incorporated by reference,
ASTM D2513-12ae1, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings” (incorporated by reference, see § 192.7).
ASTM D2517—Thermosetting plastic pipe and tubing, “Standard Specification for Reinforced Epoxy Resin Gas Pressure Pipe and Fittings” (incorporated by reference,
ASTM F2785-12, “Standard Specification for Polyamide 12 Gas Pressure Pipe, Tubing, and Fittings” (PA-12) (incorporated by reference,
ASTM F2945-12a, “Standard Specification for Polyamide 11 Gas Pressure Pipe, Tubing, and Fittings” (PA-11) (incorporated by reference,
ASTM F1055-98 (2006), “Standard Specification for Electrofusion Type Polyethylene Fittings for Outside Diameter Controlled Polyethylene Pipe and Tubing” (incorporated by reference,
ASTM F1924-12, “Standard Specification for Plastic Mechanical Fittings for Use on Outside Diameter Controlled Polyethylene Gas Distribution Pipe and Tubing” (incorporated by reference,
ASTM/ANSI F1948-12, “Standard Specification for Metallic Mechanical Fittings for Use on Outside Diameter Controlled Thermoplastic Gas Distribution Pipe and Tubing” (incorporated by reference,
ASTM F1973-13, “Standard Specification for Factory Assembled Anodeless Risers and Transition Fittings in Polyethylene (PE) and Polyamide 11 (PA 11) and Polyamide 12 (PA 12) Fuel Gas Distribution Systems” (incorporated by reference,
ASTM/ANSI F2600-09, “Standard Specification for Electrofusion Type Polyamide-11 Fittings for Outside Diameter Controlled Polyamide-11 Pipe and Tubing” (incorporated by reference,
ASTM/ANSI F2145-13, “Standard Specification for Polyamide 11 (PA-11) and Polyamide 12 (PA-12) Mechanical Fittings for Use on Outside Diameter Controlled Polyamide 11 and Polyamide 12 Pipe and Tubing” (incorporated by reference,
ASTM F2767-12, “Specification for Electrofusion Type Polyamide-12 Fittings for Outside Diameter Controlled Polyamide-12 Pipe and Tubing for Gas Distribution” (incorporated by reference,
ASTM F2817-10, “Standard Specification for Poly (Vinyl Chloride) (PVC) Gas Pressure Pipe and Fittings for Maintenance or Repair” (incorporated by reference,
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to amend our public use regulations for Kenai National Wildlife Refuge (Kenai NWR or Refuge) to clarify the existing regulations; implement management decisions from our June 2010 Kenai NWR revised comprehensive conservation plan (CCP); establish regulations for managing wildlife attractants, including food, refuse, and retained fish; and revise the regulations for hunting and trapping. The proposed regulations are aimed at enhancing natural resource protection, public use activities, and public safety on the Refuge; are necessary to ensure the compatibility of public use activities with the Refuge's purposes and the Refuge System's purposes; and would ensure consistency with management policies and approved Refuge management plans.
To ensure that we are able to consider your comments on this proposed rule, we must receive them on or before July 20, 2015. We must receive requests for public hearings, in writing, at the address shown in the
You may submit comments on this proposed rule by one of the following methods:
(1) Electronically:
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R7-NWRS-2014-0003, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We will post all comments on
Stephanie Brady, National Wildlife Refuge System, Alaska Regional Office, 1011 E. Tudor Rd., Mail Stop 211, Anchorage, AK 99503; telephone (907) 306-7448; fax (907) 786-3901.
Franklin D. Roosevelt established the Kenai National Moose Range (Moose Range) on December 16, 1941, for the purpose of “protecting the natural breeding and feeding range of the giant Kenai moose on the Kenai Peninsula, Alaska, which in this area presents a unique wildlife feature and an unusual opportunity for the study in its natural environment of the practical management of a big game species that has considerable local economic value” (Executive Order 8979; see 6 FR 6471, December 18, 1941).
Section 303(4) of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) (16 U.S.C. 3101
ANILCA sets out purposes for each refuge in Alaska; the purposes of Kenai NWR are set forth in section 303(4) (B) of ANILCA. The purposes identify some of the reasons why Congress established the Refuge and set the management priorities for the Refuge. The purposes are as follows:
(1) To conserve fish and wildlife populations and habitats in their natural diversity including, but not limited to, moose, bears, mountain goats, Dall sheep, wolves and other furbearers, salmonoids and other fish, waterfowl and other migratory and nonmigratory birds;
(2) To fulfill the international treaty obligations of the United States with respect to fish and wildlife and their habitats;
(3) To ensure, to the maximum extent practicable and in a manner consistent with the purposes set forth in (1), above, water quality and necessary water quantity within the Refuge;
(4) To provide, in a manner consistent with (1) and (2), above, opportunities for scientific research, interpretation, environmental education, and land management training; and
(5) To provide, in a manner compatible with these purposes, opportunities for fish and wildlife-oriented recreation.
The Wilderness Act of 1964 (16 U.S.C. 1131-1136) provides the following purposes for wilderness areas, including the Kenai wilderness area:
(1) To secure an enduring resource of wilderness;
(2) To protect and preserve the wilderness character of areas within the National Wilderness Preservation System; and
(3) To administer the areas for the use and enjoyment of the American people in a way that will leave them unimpaired for future use and enjoyment as wilderness.
The Refuge is considered by many to be “Alaska in miniature.” It includes portions of the Harding Ice Field at its highest elevations, the western slopes of the Kenai Mountains, and forested lowlands bordering Cook Inlet. Treeless alpine and subalpine habitats are home to mountain goats, Dall sheep, caribou, wolverine, marmots, and ptarmigan. Most of the lower elevations on the Refuge are covered by boreal forests composed of spruce and birch forests intermingled with hundreds of lakes. Boreal forests are home to moose; wolves; black and brown bears; lynx; snowshoe hares; and numerous species of neotropical songbirds, such as olive-sided flycatchers, myrtle warblers, and ruby-crowned kinglets. At sea level, the Refuge encompasses the largest estuary on the Peninsula—the Chickaloon River Flats. The Chickaloon River Flats provide a major migratory staging area for thousands of shorebirds and waterfowl and provide a haul-out area for harbor seals and feeding areas for beluga whales.
Under our regulations implementing ANILCA in Title 50 of the Code of Federal Regulations at part 36 (50 CFR 36), all refuge lands in Alaska are open to public recreational activities as long as such activities are conducted in a manner compatible with the purposes for which the refuge was established (50 CFR 36.31). Such recreational activities include, but are not limited to, sightseeing, nature observation and photography, hunting, fishing, boating, camping, hiking, picnicking, and other related activities (50 CFR 36.31(a)).
The National Wildlife Refuge Administration Act of 1966 (16 U.S.C. 668dd-668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997, defines “wildlife-dependent recreation” and “wildlife-dependent recreational use” as “hunting, fishing, wildlife observation and photography, or environmental education and interpretation” (16 U.S.C. 668ee (2)). We encourage these uses, and they receive emphasis in management of the public use of Kenai NWR.
The current refuge-specific regulations for Kenai NWR are set forth at 50 CFR 36.39(i). These regulations include provisions concerning the operation of aircraft, motorboats, off-road vehicles, and snowmobiles; hunting and trapping; camping; timber removal; personal property; use of nonmotorized wheeled vehicles; canoeing; and area closures on the Refuge.
In this document, we propose to make the following changes to the refuge-specific regulations for Kenai NWR:
(1) Amend regulations affecting the use of aircraft, motorboats, motorized vehicles, and snowmobiles;
(2) Codify restrictions on hunting and trapping within the Skilak Wildlife Recreation Area recently established in accordance with the procedures set forth at 50 CFR 36.42 (public participation and closure procedures);
(3) Expand a prohibition on the discharge of firearms to include areas of intensive public use along the Kenai and Russian rivers;
(4) Clarify the intent of an existing regulation addressing hunting over bait;
(5) Amend regulations associated with camping, use of public use cabins and public fishing facilities, unattended equipment, livestock including pack animals, and public gatherings;
(6) Establish regulations to reduce potential for negative human-bear interactions;
(7) Establish regulations for noncommercial gathering of natural resources, including collection of edible wild foods and shed antlers; and
(8) Codify restrictions on certain uses within areas of the Refuge under conservation easements and easements made under section 17(b) of the Alaska Native Claims Settlement Act (ANCSA) (43 U.S.C. 1601
We also propose to clarify the existing regulations through editing for plain language and through correcting misspellings. Our proposed substantive changes are discussed in more detail below.
The revised Kenai NWR comprehensive conservation plan (2010) (CCP) addresses five primary issues:
• Management of large-scale habitat changes and the use of fire;
• Management of Refuge facilities for public use while ensuring natural and cultural resource protection;
• Enhancement of wildlife-oriented recreation opportunities;
• Management of the increasing public use to ensure protection of resources, visitor experience, and public safety; and
• Balancing motorized access with protection of resources and visitor experiences.
This proposed rule would implement management direction and/or specific actions identified in the CCP and its record of decision that are intended to address the latter four issues. Specifically, we propose to:
(1) Allow expanded airplane operation on the Chickaloon River Flats, open an additional lake to airplane operation within the Kenai wilderness for permitted hunting access, change the dates of prohibited aircraft operation on any lake where nesting trumpeter swans or their broods or both are present from May 1 to September 30 to May 1 to September 10, and prohibit airdrop of any items except under the terms and conditions of a special use permit (FWS Form 3-1383-G).
(2) Prohibit boat motors in excess of 10 horsepower in selected lakes and adopt motor horsepower and boat size and capacity restrictions for portions of the Kenai River within the Refuge. The proposed motor horsepower, motor type and boat size restrictions would enhance consistency with existing State boating regulations within the Kenai River Special Management Area (11 Alaska Administrative Code [AAC] 20.860 and 11 AAC 20.861).
(3) Clarify that jet skis and personal watercraft are included in the list of prohibited motorized watercraft.
(4) Prohibit the use of snowmobiles to pursue, chase, or herd wildlife.
(5) Establish requirements for use of public fishing facilities to ensure protection of sensitive Kenai River shoreline habitats, and enhance safety for both ferry passengers and visitors fishing in the immediate vicinity of Russian River ferry operations.
(6) Clarify requirements for use of developed campgrounds and public use cabins including general occupancy, reservations and payment of fees, length of stay, management of wildlife attractants and human waste, control of pets, and campfire use; prohibit dispersed camping within 100 yards of the Kenai River in certain locations to enhance protection of sensitive riverbank habitats; and prohibit overnight camping at certain developed parking facilities to meet day-use parking needs.
(7) Specify requirements for use of nonmotorized wheeled vehicles on designated roads including a new allowance for use of wheeled game carts; for use of livestock for packing, including a new requirement for use of certified weed-free feed to reduce potential for introducing invasive plant species; for allowance of natural resource collection, including berries and edible plants and shed antlers for personal use; for extension of the allowable time for leaving personal property unattended for certain approved extended stay activities; and for public gatherings.
(8) Codify legal requirements governing use of areas where the Service administers non-development easements, public use easements, and easements made under section 17(b) of ANCSA.
The CCP and its record of decision are available for public inspection on the Federal eRulemaking Portal,
This proposed rule would establish regulations addressing food and retained fish storage and handling in an area surrounding the confluence of the Kenai and Russian rivers, which we refer to as the Russian River-Kenai River Special Management Area. The Russian River forms the boundary between the Refuge and the Chugach National Forest. Enhancing public safety and wildlife resource conservation in this area by reducing the potential for negative human-bear interactions has been the focus of formal interagency and stakeholder coordination efforts involving the Service; the U.S. Forest Service; Alaska Department of Fish and Game; Alaska Department of Natural Resources; Cook Inlet Region, Incorporated; and Kenaitze Indian Tribe. Proper food and retained fish storage and handling in this area, which hosts one of Alaska's most popular and accessible recreational fisheries, are necessary and important components of these efforts.
The proposed rule would codify and make permanent food and retained fish regulations that have been issued by the Service as temporary restrictions in recent years in accordance with 50 CFR 36.42, and would provide consistency with U.S. Forest Service's food and retained fish storage regulations applying to adjacent lands within the Chugach National Forest (36 CFR 261.58). This consistency among regulations would have the added benefit of reducing confusion for the public utilizing this area, as visitors regularly use both jurisdictions while recreating in the area.
By law (National Wildlife Refuge System Administration Act of 1966, as amended; Alaska National Interest Lands Conservation Act of 1980), regulation (43 CFR 24), and policy (the Service Manual at 605 FW 1 and 605 FW 2), the Service must, to the extent practicable, ensure that refuge regulations permitting hunting and fishing are consistent with State laws, regulations, and management plans. In addition, under the Master Memorandum of Understanding (1982) (MMOU) between the Service and the Alaska Department of Fish and Game, it is recognized that taking of fish and wildlife by hunting, trapping, or fishing on Service lands in Alaska is authorized under applicable State and Federal law unless State regulations are found to be incompatible with documented refuge goals, objectives, or management plans. The MMOU also commits the Service to utilize the State's regulatory process to the maximum extent allowed by Federal law in developing new or modifying existing Federal regulations or proposing changes in existing State regulations governing or affecting the taking of fish and wildlife on Service lands in Alaska.
In recognition of the above, nonconflicting State general hunting and trapping regulations are usually adopted on NWRs. Hunting and trapping, however, remain subject to legal mandates, regulations, and management policies pertinent to the administration and management of NWRs. For refuges in Alaska, a number of statutes provide authority and directives, and three statutes are key: The Alaska National Interest Lands Conservation Act (ANILCA) of 1980; the National Wildlife Refuge System Administration Act of 1966, as amended; and the Wilderness Act of 1964.
The prohibitions and/or restrictions on hunting and trapping proposed by the Service in this rule are necessary to ensure that hunting and trapping are regulated in a manner such that these activities remain compatible with Kenai NWR's established purposes and the Refuge System mission; to ensure consistency with Service policy, directives, and approved management plans; to minimize conflicts between authorized users of the Refuge; and to protect public safety. This proposed rule would establish prohibitions and/or restrictions on hunting and trapping within the Skilak Wildlife Recreation Area of the Refuge, establish a prohibition on the discharge of firearms within
This proposed rule would codify an existing regulatory closure of hunting and trapping, with exceptions for certain hunting activities, within the Skilak Wildlife Recreation Area, consistent with the Service's 2007 Skilak Wildlife Recreation Area Revised Final Management Plan (which reaffirmed management objectives for the area established under the Refuge's 1985 CCP) and which mimic State of Alaska hunting and trapping regulations for the area in effect prior to 2013. The Skilak Wildlife Recreation Area is a 44,000-acre area of the Refuge that has, since 1985, been managed with a primary emphasis on providing enhanced opportunities for wildlife viewing, environmental education, and interpretation. Under historic State regulations, the area was closed to hunting and trapping, with the exception of hunting of small game with bow and arrow and falconry, moose hunting by permit, and “youth-only” firearm hunting of small game. Hunting of all other species has been prohibited since 1987.
This proposed rule would codify the Service's November 2013 permanent closure, established in accordance with 50 CFR 36.42, to hunting and trapping, with the exceptions for moose and small game described above, in the Skilak Wildlife Recreation Area (see 78 FR 66061, November 4, 2013). The Service
Also to help ensure protection of public safety, the proposed rule would expand areas closed to the discharge of firearms within the Refuge by prohibiting discharge of firearms along the Kenai and Russian rivers, with exceptions for use of firearms to dispatch animals while lawfully trapping in both areas and use of shotguns for waterfowl and small game hunting along the Kenai River. These river corridors receive intensive recreational use for sport fishing from shorelines and boats during open seasons for salmon and resident fish including rainbow trout and Dolly Varden, and, on the upper Kenai River for river floating, from late spring to freeze-up. The exceptions include an allowance for use of shotguns for waterfowl hunting, a popular traditional recreational activity occurring from September to mid-December along the Kenai River in areas downstream of Skilak Lake and near the outlet of the river into Skilak Lake. The proposed firearm discharge restriction would in effect require that archery equipment be used for taking of big game within the designated river corridors. This change would enhance consistency with State regulations which prohibit the discharge of firearms (with area-specific exceptions) within the Kenai River Special Management Area (11 AAC 20.850).
The proposed rule would clarify an existing regulation which allows hunting over bait for the harvest of black bears under the terms and conditions of a special use permit (FWS Form 3-1383-G). All other hunting over bait is in effect prohibited on the Refuge. This clarification is necessary in light of recent action by the Alaska Board of Game to allow for the take of brown bears at registered black bear baiting stations. It has, and continues to be, the intent of the Service to allow baiting only for the take of black bears under the existing regulations, and this restriction is currently addressed through a stipulation on the refuge special use permit. This change would provide additional notice and clarification for the public of this intent.
Maps depicting proposed changes to existing public uses and/or public use areas and referred to in the proposed rule are available for public inspection on the Federal eRulemaking Portal,
You may submit comments and materials on this proposed rule by any one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
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.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
This proposed rule would impact visitor use for wildlife-dependent
Small businesses within the retail trade industry (such as hotels, gas stations, etc.) (NAIC 44) and accommodation and food service establishments (NAIC 72), may be impacted by spending generated by Refuge visitation. Seventy-six percent of establishments in the Kenai Peninsula Borough qualify as small businesses. This statistic is similar for retail trade establishments (72 percent) and accommodation and food service establishments (65 percent). Due to the negligible change in average recreation days, this proposed rule would have a minimal effect on these small businesses.
With the negligible change in overall visitation anticipated from this proposed rule, it is unlikely that a substantial number of small entities would have more than a small economic effect. Therefore, we certify that, if adopted, this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act. An initial regulatory flexibility analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.
This proposed rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:
a. Would not have an annual effect on the economy of $100 million or more.
b. Would not cause a major increase in costs or prices for consumers; individual industries; federal, State, or local government agencies; or geographic regions.
c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.
This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule would not have a significant or unique effect on State, local, or tribal governments or on the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This proposed rule does not involve the taking of private property or otherwise have taking implications under Executive Order 12630. This proposed rule, if adopted, would affect the public use and management of Kenai NWR, which is managed by the Service in Alaska. A takings implication assessment is not required.
In accordance with Executive Order 13132, this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. This proposed rule, if adopted, would affect the public use and management of Kenai NWR, which is managed by the Service in Alaska, and would not have a substantial direct effect on State or local governments in Alaska.
This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rule:
a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
b. Meets the criteria of section 3(b) (2) requiring that all regulations be written in clear language and contain clear legal standards.
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis, and we are seeking their input to evaluate this proposed rule. In addition, we have evaluated this proposed rule under Alaska Native Claims Settlement Act (ANCSA) corporation policies. We are consulting with Alaska Native tribes and Alaska Native corporations regarding the proposed changes in this rule for Kenai NWR.
This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501
The Service has analyzed this proposed rule in accordance with the criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
For the CCP, we prepared a draft revised CCP and a draft environmental impact statement (DEIS) under NEPA, and made them available for comment for public comment on May 8, 2008 (73 FR 26140). The public comment period on those draft documents began on May 8, 2008, and ended on September 1, 2008. We then prepared our final revised CCP and final EIS, and made them available for public comment for 30 days, beginning August 27, 2009 (74 FR 43718). We announced the availability of the record of decision for the final revised CCP and final EIS on January 11, 2010 (75 FR 1404).
We completed a draft management plan and draft environmental assessment (EA) under NEPA for the Skilak Wildlife Recreation Area Management Plan in October 2006. We distributed approximately 2,500 copies to individuals, businesses, agencies, and
You can obtain copies of the CCP/EIS and the revised final management plan for the Skilak Wildlife Recreation Area either on the Federal eRulemaking Portal,
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking actions that significantly affect energy supply, distribution, or use. We believe that the rule would not have any effect on energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Andy Loranger, Refuge Manager, Kenai NWR, is the primary author of this rulemaking document.
Alaska, Recreation and recreation areas, Reporting and recordkeeping requirements, Wildlife refuges.
Accordingly, we propose to amend 50 CFR part 36 as set forth below:
16 U.S.C. 460(k)
(i)
(1)
(i) We allow the operation of airplanes within the Kenai Wilderness on the following designated lakes, and under the restrictions noted:
(A)
Tustumena Lake and all lakes within the Kenai Wilderness within 1 mile of the shoreline of Tustumena Lake.
All unnamed lakes in sections 1 and 2, T. 1 S., R. 10 W., and sections 4, 5, 8, and 9, T. 1 S., R. 9 W., Seward Meridian.
An unnamed lake in sections 28 and 29, T. 2 N., R. 4 W., Seward Meridian: The Refuge Manager may issue a special use permit (FWS Form 3-1383-G) for the operation of airplanes on this lake to successful applicants for certain State of Alaska, limited-entry, drawing permit hunts. Successful applicants should contact the Refuge Manager to request information.
(C)
An unnamed lake in section 11, T. 6 N., R. 5 W., Seward Meridian.
(ii) We allow the operation of airplanes on all lakes outside of the Kenai Wilderness, except that we prohibit aircraft operation on:
(A) The following lakes with recreational developments, including, but not limited to, campgrounds, campsites, and public hiking trails connected to road waysides, north of the Sterling Highway:
(B) All lakes within the Skilak Wildlife Recreation Area (south of Sterling Highway and north of Skilak Lake), except for Bottenintnin Lake (open to airplanes year-round) and Hidden Lake (open to airplanes only to provide access for ice fishing).
(C) Headquarters Lake (south of Soldotna), except for administrative purposes. You must request permission from the Refuge Manager.
(iii) Notwithstanding any other provisions of this part, we prohibit the operation of aircraft from May 1 through September 10 on any lake where nesting trumpeter swans or their broods or both are present.
(iv) We prohibit the operation of wheeled airplanes, with the following exceptions:
(A) We allow the operation of wheeled airplanes, at the pilot's risk, on the unmaintained Big Indian Creek Airstrip; on gravel areas within
(B) We allow the operation of wheeled airplanes, at the pilot's risk, within designated areas of the Chickaloon River Flats.
(v) We allow the operation of airplanes on the Kasilof River, on the Chickaloon River (from the outlet to mile 6.5), and on the Kenai River below Skilak Lake (from June 15 through March 14). We prohibit aircraft operation on all other rivers on the refuge.
(vi) We prohibit the operation of unlicensed aircraft anywhere on the refuge except as authorized under terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.
(vii) We prohibit air dropping any items within the Kenai Wilderness except as authorized under terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.
(2)
(i) We allow motorboat operation on all waters of the refuge, except that:
(A) We prohibit motorboat operation within the Dave Spencer (Canoe Lakes) Unit of the Kenai Wilderness, including those portions of the Moose and Swanson rivers within this Unit, except that we allow motorboat operation on those lakes designated for airplane operations as provided in paragraph (i)(1) and shown on a map available from Refuge Headquarters.
(B) We prohibit motorboat operation on the Kenai River from the eastern refuge boundary near Sportsmans Landing and the confluence of the Russian River downstream to Skilak Lake. You may have a motor attached to your boat and drift or row through this section, provided the motor is not operating.
(C) We prohibit motorboat operation on the Kenai River from the outlet of Skilak Lake (river mile 50) downstream for approximately 3 miles (river mile 47) between March 15 and June 14, inclusive. You may have a motor attached to your boat and drift or row through this section, provided the motor is not operating.
(D) We prohibit the operation of motors with a total propshaft horsepower rating greater than 10 horsepower on the Moose, Swanson, Funny, Chickaloon (upstream of river mile 7.5), Killey, and Fox rivers.
(E) On the Kenai River downstream of Skilak Lake (river mile 50) to the refuge boundary (river mile 45.5), we restrict motorboat operation to only those motorboats with 4-stroke or direct fuel injection motors with a total propshaft horsepower rating of 50 horsepower or less, and that are up to 21 feet in length and up to 106 inches in width. On Skilak Lake, we restrict motorboat operation to only those motorboats with 4-stroke or direct fuel injection motors.
(F) A “no wake” restriction applies to the entire water body of Engineer, Upper and Lower Ohmer, Bottenintnin, Upper and Lower Jean, Kelly, Petersen, Watson, Imeri, Afonasi, Dolly Varden, and Rainbow lakes. We prohibit the operation of motors with a total propshaft horsepower rating of great than 10 horsepower on each of these lakes.
(ii) Notwithstanding any other provisions of these regulations, we prohibit the operation of motorboats from May 1 through September 10 on any lake where nesting trumpeter swans or their broods or both are present.
(3)
(i) We prohibit the operation of all off-road vehicles, as defined at 50 CFR 36.2, except that four-wheel drive, licensed, and registered motor vehicles designed and legal for highway use may operate on designated roads, rights-of-way, and parking areas open to public vehicular access. This prohibition applies to off-road vehicle operation on lake and river ice. At the operator's risk, we allow licensed and registered motor vehicles designed and legal for highway use on Hidden, Engineer, Kelly, Petersen, and Watson lakes only to provide access for ice fishing. You must enter and exit the lakes via existing boat ramps.
(ii) We prohibit the operation of air cushion watercraft, air-thrust boats, jet skis and other personal watercraft, and all other motorized watercraft except motorboats.
(iii) The Refuge Manager may issue a special use permit (FWS Form 3-1383-G) for the operation of specialized off-road vehicles and watercraft for certain administrative activities (to include fish and wildlife-related monitoring, vegetation management, and infrastructure maintenance in permitted rights-of-way).
(4)
(i) We allow the operation of snowmobiles from December 1 through April 30 only when the Refuge Manager determines that there is adequate snow cover to protect underlying vegetation and soils. During this time, the Refuge Manager will authorize, through public notice (a combination of any or all of the following: Internet, newspaper, radio, and/or signs), the use of snowmobiles less than 48 inches in width and less than 1,000 pounds (450 kg) in weight.
(ii) We prohibit snowmobile operation:
(A) In all areas above timberline, except the Caribou Hills.
(B) In an area within sections 5, 6, 7, and 8, T. 4 N., R. 10 W., Seward Meridian, east of the Sterling Highway right-of-way, including the Refuge Headquarters complex, the environmental education/cross-country ski trails, Headquarters and Nordic lakes, and the area north of the east fork of Slikok Creek and northwest of a prominent seismic trail to Funny River Road.
(C) In an area including the Swanson River Canoe Route and portages, beginning at the Paddle Lake parking area, then west and north along the Canoe Lakes wilderness boundary to the Swanson River, continuing northeast along the river to Wild Lake Creek, then east to the west shore of Shoepac Lake, south to the east shore of Antler Lake, and west to the beginning point near Paddle Lake.
(D) In an area including the Swan Lake Canoe Route and several road-connected public recreational lakes, bounded on the west by the Swanson River Road, on the north by the Swan Lake Road, on the east by a line from the east end of Swan Lake Road south to the west bank of the Moose River, and on the south by the refuge boundary.
(E) In the Skilak Wildlife Recreation Area, except on Hidden, Kelly, Petersen, and Engineer lakes only to provide access for ice fishing. You must enter and exit these lakes via the existing boat ramps and operate exclusively on the lakes. Within the Skilak Wildlife Recreation Area, only Upper and Lower Skilak Lake campground boat launches may be used as access points for snowmobile use on Skilak Lake.
(F) On maintained roads within the refuge. Snowmobiles may cross a maintained road after stopping.
(G) For racing, or to herd, harass, haze, pursue, or drive wildlife.
(5)
(i) You may not discharge a firearm within
(ii) We prohibit hunting over bait, with the exception of hunting for black bear, and then only as authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.
(iii) We prohibit hunting big game with the aid or use of a dog, with the exception of hunting for black bear, and then only as authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.
(iv) We prohibit hunting and trapping within sections 5, 6, 7, and 8, T. 4 N., R. 10 W., Seward Meridian, encompassing the Kenai Refuge Headquarters, Environmental Education Center, Visitor Center Complex, and associated public use trails. A map of closure areas is available at Refuge Headquarters.
(v) The additional provisions for hunting and trapping within the Skilak Wildlife Recreation Area are set forth in paragraph (i)(6).
(6)
(i) The Skilak Wildlife Recreation Area is bound by a line beginning at the easternmost junction of the Sterling Highway and the Skilak Loop Road (Mile 58), then due south to the south bank of the Kenai River, then southerly along the south bank of the Kenai River to its confluence with Skilak Lake, then westerly along the north shore of Skilak Lake to Lower Skilak Campground, then northerly along the Lower Skilak campground road and the Skilak Loop Road to its westernmost junction with the Sterling Highway (Mile 75.1), then easterly along the Sterling Highway to the point of origin.
(ii) The Skilak Wildlife Recreation Area (Skilak Loop Management Area) is closed to hunting and trapping, except as provided in paragraphs (i)(6)(iii) and (i)(6)(iv).
(iii) You may hunt moose only with a permit issued by the Alaska Department of Fish and Game and in accordance with the provisions set forth in paragraph (i)(5).
(iv) You may hunt small game in accordance with the provisions set forth in paragraph (i)(5) and:
(A) Using falconry and bow and arrow only from October 1 through March 1; or
(B) If you are a youth hunter 16 years old or younger, who is accompanied by a licensed hunter 18 years old or older who has successfully completed a certified hunter education course (if the youth hunter has not), or by someone born on or before January 1, 1986. Youth hunters must use standard .22 rimfire or shotgun, and may hunt only in that portion of the area west of a line from the access road from the Sterling Highway to Kelly Lake, the Seven Lakes Trail, and the access road from Engineer Lake to Skilak Lake Road, and north of the Skilak Lake Road. The youth hunt occurs during each weekend from November 1 to December 31, including the Friday following Thanksgiving. State of Alaska bag limit regulations apply.
(7)
(i) We prohibit fishing from June 1 through August 15 during the hours of the Russian River Ferry operation along the south bank of the Kenai River from a point 100 feet upstream to a point 100 feet downstream of the ferry dock.
(ii) Designated areas along the Kenai River at the two Moose Range Meadows public fishing facilities along Keystone Drive are closed to public access and use. At these facilities, we allow fishing only from the fishing platforms and by wading in the Kenai River. To access the river, you must enter and exit from the stairways attached to the fishing platforms. We prohibit fishing from, walking or placing belongings on, or otherwise occupying designated areas along the river in these areas.
(8)
(i) Unless otherwise further restricted, camping may not exceed 14 days in any 30-day period anywhere on the refuge.
(ii) Campers may not spend more than 7 consecutive days at Hidden Lake Campground or in public use cabins.
(iii) The Refuge Manager may establish a fee and registration permit system for overnight camping at designated campgrounds and public use cabins. At all of the refuge's fee-based campgrounds and public use cabins, you must pay the fee in full prior to occupancy. No person may attempt to reserve a refuge campsite by placing a placard, sign, or any item of personal property on a campsite. Reservations and a cabin permit are required for public use cabins, with the exception of the Emma Lake and Trapper Joe cabins, which are available on a first-come, first-served basis. Information on the refuge's public use cabin program is available from Refuge Headquarters and online at
(iv) Campers in developed campgrounds and public use cabins must follow all posted campground and cabin occupancy rules.
(v) You must observe quiet hours from 11:00 p.m. until 7:00 a.m. in all developed campgrounds, parking areas, and public use cabins.
(vi) Within developed campgrounds, we allow camping only in designated sites.
(vii)
(A) Within developed campgrounds, we allow open fires only in portable, self-contained, metal fire grills, or in the permanent fire grates provided. We prohibit moving a permanent fire grill or grate to a new location.
(B) Campers and occupants of public use cabins may cut only dead and down vegetation for campfire use.
(C) You must completely extinguish (put out cold) all campfires before permanently leaving a campsite.
(viii) While occupying designated campgrounds, parking areas, or public use cabins, all food (including lawfully retained fish, wildlife, or their parts), beverages, personal hygiene items, odiferous refuse, or any other item that may attract bears or other wildlife, and all equipment used to transport, store, or cook these items (such as coolers, backpacks, camp stoves, and grills) must be:
(A) Locked in a hard-sided vehicle, camper, or camp trailer; in a cabin; or in a commercially produced and certified bear-resistant container; or
(B) Immediately accessible to at least one person who is outside and attending to the items.
(ix) We prohibit deposition of solid human waste within 100 feet of annual mean high water level of any wetland, lake, pond, spring, river, stream, campsite, or trail. In the Swan Lake and Swanson River Canoe Systems, you must bury solid human waste to a depth of 6 to 8 inches.
(x) We prohibit tent camping within 600 feet of each public use cabin, except by members and guests of the party registered to that cabin.
(xi) Within 100 yards of the Kenai River banks along the Upper Kenai River from river mile 73 to its confluence with Skilak Lake (river mile 65), and along the Middle Kenai River downstream of Skilak Lake (river mile 50 to river mile 45.5), we allow camping only at designated primitive campsites. Campers can spend no more than 3 consecutive nights at the designated primitive campsites.
(xii) We prohibit camping in the following areas of the refuge:
(A) Within
(B) On the two islands in the lower Kenai River between mile 25.1 and mile 28.1 adjacent to the Moose Range Meadows Subdivision.
(C) At the two refuge public fishing facilities and the boat launching facility along Keystone Drive within the Moose Range Meadows Subdivision, including within parking areas, and on trails, fishing platforms, and associated refuge lands.
(9)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(10)
(i) From March 15 through September 30, you may not approach within 100 yards of, or walk on or otherwise occupy, the rock outcrop islands in Skilak Lake traditionally used by nesting cormorants and gulls. A map
(ii) Headquarters Lake, adjacent to the Kenai Refuge Headquarters area, is closed to boating.
(11)
(i) While recreating on or along the Russian and Kenai rivers, you must closely attend or acceptably store all attractants, and all equipment used to transport attractants (such as backpacks and coolers) at all times. Attractants are any substance, natural or manmade, including but not limited to, items of food, beverage, personal hygiene, or odiferous refuse that may draw, entice, or otherwise cause a bear or other wildlife to approach. Closely attend means to retain on the person or within the person's immediate control and in no case more than 3 feet from the person. Acceptably store means to lock within a commercially produced and certified bear-resistant container.
(ii) While recreating on or along the Russian and Kenai rivers, you must closely attend or acceptably store all lawfully retained fish at all times. Closely attend means to keep within view of the person and be near enough for the person to quickly retrieve, and in no case more than 12 feet from the person. Acceptably store means to lock within a commercially produced and certified bear-resistant container.
(iii) We prohibit overnight camping except in designated camping facilities at the Russian River Ferry and Sportsman's Landing parking areas. Campers may not spend more than 2 consecutive days at these designated camping facilities.
(iv) You may start or maintain a fire only in designated camping facilities at the Russian River Ferry and Sportsman's Landing parking areas, and then only in portable, self-contained, metal fire grills, or in the permanent fire grates provided. We prohibit moving a permanent fire grill or grate to a new location. You must completely extinguish (put out cold) all campfires before permanently leaving your campsite.
(12)
(i) Where the refuge administers two variable width, non-development easements held by the United States and overlaying private lands within the Moose Range Meadows Subdivision on either shore of the Kenai River between river miles 25.1 and 28.1, you may not erect any building or structure of any kind; remove or disturb gravel, topsoil, peat, or organic material; remove or disturb any tree, shrub, or plant material of any kind; start a fire; or use a motorized vehicle of any kind (except a wheelchair occupied by a person with a disability), unless such use is authorized under the terms and conditions of a special use permit (FWS Form 3-1383-G) issued by the Refuge Manager.
(ii) Where the refuge administers two 25-foot-wide public use easements held by the United States and overlaying private lands within the Moose Range Meadows Subdivision on either shore of the Kenai River between river miles 25.1 and 28.1, we allow public entry subject to applicable Federal regulations and the following provisions:
(A) You may walk upon or along, fish from, or launch or beach a boat upon an area 25 feet upland of ordinary high water, provided that no vehicles (except wheelchairs) are used. We prohibit non-emergency camping, structure construction, and brush or tree cutting within the easements.
(B) From July 1 to August 15, you may not use or access any portion of the 25-foot-wide public easements or the three designated public easement trails located parallel to the Homer Electric Association Right-of-Way from Funny River Road and Keystone Drive to the downstream limits of the public use easements. Maps depicting the seasonal closure are available from Refuge Headquarters.
(13)
U.S. Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), Commerce.
Proposed rule.
We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, propose changes to the regulations concerning petitions, to improve the content and specificity of petitions and to enhance the efficiency and effectiveness of the petitions process to support species conservation. Our proposed revisions to the regulations would clarify and enhance the procedures by which the Services will evaluate petitions under section 4(b)(3) of the Endangered Species Act of 1973, as amended. These revisions would also maximize the efficiency with which the Services process petitions, making the best use of available resources.
We will accept comments that we receive on or before July 20, 2015. Please note that if you are using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
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•
We will post all comments on
Douglas Krofta, U.S. Fish and Wildlife Service, Division of Conservation and Classification, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone 703-358-2171; facsimile 703-358-1735; or Angela Somma, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-427-8403. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
The primary purpose of the petition process is to empower the public, in effect, to direct the attention of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) to (1) species that may be imperiled and not otherwise known to the Services, (2) changes to a listed species' threats or other circumstances that warrant that species being reclassified (
The Services are proposing changes to the regulations at 50 CFR 424.14 concerning petitions to improve the content and specificity of petitions and to enhance the efficiency and effectiveness of the petitions process to support species conservation. Our proposed revisions to § 424.14 would clarify and enhance the procedures by which the Services will evaluate petitions under section 4(b)(3) of the Act, 16 U.S.C. 1533(b)(3). We propose to revise the regulations pertaining to the petition process to provide greater clarity to the public on the petition-submission process, which will assist petitioners in providing complete petitions. These revisions would also maximize the efficiency with which the Services process petitions, making the best use of available resources. These changes would improve the quality of petitions through expanded content requirements and guidelines; and, in doing so; better focus the Services' energies on petitions that merit further analysis. The following discussion outlines the proposed changes and explains the benefits of making these changes.
Proposed paragraph (a) would retain the first sentence of the current section. Proposed new paragraph (b) would incorporate the substance of the second and third sentences of current paragraph (a), which set forth certain minimum content requirements for a request for agency action to qualify as a petition for the purposes of section 4(b)(3) of the Act, 16 U.S.C. 1533(b)(3). The new paragraph would also expand upon the list of requirements for a petition, drawing in part from the provisions in current paragraph (b)(2). Proposed paragraph (b)(2) would, however, newly require that a petition address only one species. Although the Services in the past have accepted multi-species petitions, in practice it has often proven to be difficult to know which supporting materials apply to which species, and has sometimes made it difficult to follow the logic of the petition. This requirement would not place any limitation on the ability of an interested party to petition for section 4 actions, but would require petitioners to organize the information in a way (on a species-by-species basis) that will allow more efficient action by the Services.
The first six requirements (in proposed paragraphs (b)(1) through (b)(6)) would apply to each type of petition recognized under section 4(b)(3) of the Act. The first four requirements (in proposed paragraphs (b)(1) through (b)(4)) are all contained in the current regulations at § 424.14(a) and (b). The fifth and sixth requirements (in proposed paragraphs (b)(5) and (b)(6)) clarify and expand on the current provisions regarding a petition's supporting documentation at § 424.14(b)(2)(iv). The seventh requirement (in proposed paragraph (b)(7)), however, would apply only to petitions to list a species, and would require that information be presented on the face of the request to demonstrate that the entity that is the subject of the request is or may be a “species” as defined in the Act (which includes a species, subspecies, or distinct population segment). Section 4(b)(3)(A) of the Act applies only to “a petition . . . to add a
Although section 4(b)(3)(A) of the Act authorizes interested persons to submit a petition to add a species to, or remove a species from, the Lists of Endangered and Threatened Wildlife and Plants, and section 4(b)(3)(D) of the Act authorizes submission of petitions to revise critical habitat designations, the Act does not specify the required contents of such a petition, but instead leaves with the Secretary the authority to do so. The Services are concerned that the States, which often have considerable experience and information on the species within their boundaries, have opportunity to be involved in providing information as part of the petition process. To further the Act's directive to cooperate to the maximum extent practicable with the States, the Secretary proposes to revise the regulations pertaining to the required contents of such petitions, as well as petitions to revise or designate critical habitat. The goal of this proposed revision is to encourage greater communication and cooperation among would-be petitioners and State conservation agencies prior to the submission of listing or critical habitat petitions to the Secretary.
To that end, we propose a ninth requirement (proposed paragraph (b)(9)) that would apply only to petitions to the U.S. Fish and Wildlife Service to add a
Proposed paragraph (b)(9) would require that for any petition submitted to the U.S. Fish and Wildlife Service pertaining to species found within the United States, a petitioner must certify that a copy of the petition was provided to the State agency(ies) responsible for the management and conservation of fish, plant, or wildlife resources in each State where the species occurs at least 30 days prior to submission to the Service. The certification must include the date that the petition was provided to the relevant State agency(ies). If the State agency(ies) provided data or written comments regarding the accuracy or completeness of the petition, those data or comments must be labeled as such, appended to the petition, and submitted with the petition. If the State agency(ies) did not provide any data or written comments regarding the accuracy or completeness of the petition, the petitioner must so certify. We realize that States may not have jurisdiction over or regulate all species, such as insects or plants, and thus may not be able to provide any data for certain species.
Note that if a State provides data or written comments to the petitioner after the petition is filed, section 424.14(b)(9) would not require that the petitioner resubmit the petition with the new State data or written comments (although the petitioner may choose to do so). State data received after the filing of the petition will not reset the clock for the Services' consideration of the petition, but will become part of the data available in our files that we may elect to review under proposed section (g)(1)(ii) if sufficient time remains to do so.
In this proposed rule, we are proposing to include the requirement under (b)(9) only as to petitions filed with the United States Fish and Wildlife Service. We recognize the relatively greater logistical difficulties that would be posed to petitioners if they were required to identify and coordinate with all interested States regarding marine species and wide-ranging anadromous species. However, we seek public comment as to whether this requirement, if adopted, should also apply to petitions filed with the National Marine Fisheries Service.
The Services are also concerned that petitions should include a presentation of all reasonably available, relevant data on the subject species (or, if relevant for the particular petition, its habitat), including information that supports the petition as well as that which may tend to refute it. This is particularly true for information publicly available from affected States, who have special status and concerns with respect to implementation of the Act, as discussed above. Fostering greater inclusion of such data would help ensure that any petition submitted to the Secretary is based on reliable and unbiased information and does not consist simply of unrepresentative, selected data.
To this end, we propose a tenth requirement (proposed paragraph (b)(10)), applicable to all petitions filed with either Service, that would require a petitioner to certify that the petitioner has gathered all relevant information readily available, including from Web sites maintained by the affected States, and has clearly labeled and appended such information to the petition so that it is submitted with the petition. As an alternative to this provision, we are considering limiting the requirement under (b)(10) to extend only to gathering and certifying submission of relevant information publicly available on affected States' Web sites.
The Services would apply § 424.14(b) to identify those requests that contain all the elements of a petition, so that consideration of the request would be an efficient and wise use of agency resources. A request that fails to meet these elements would be screened out from further consideration, as discussed below, because a request cannot meet the statutory standard for demonstrating that the petitioned action may be warranted if it does not contain at least some information on each of the areas relevant to that inquiry.
Proposed § 424.14(c) and (d) describe the types of information that would be relevant to the Secretary's determination as to whether the petition provides substantial information that the petitioned action may be warranted. Petitioners are advised that compliance with paragraph (b) would result in issuance of a 90-day finding, but for that finding to be positive, petitioners should include as much of the types of information listed in paragraphs (c) or (d) (as relevant to the type of petition they are filing) as possible.
The proposed informational elements for listing, delisting, and reclassification petitions in proposed paragraphs (c)(1) through (c)(5) are rooted in the substance of current paragraphs (b)(2)(ii) and (iii). These elements would clarify in the regulations the key considerations that are relevant when the Services are determining whether or not the petition presents “substantial scientific or commercial information indicating that the petitioned action may be warranted,” which is the standard for making a positive 90-day finding as described in section 4(b)(3)(A) of the Act, 16 U.S.C. 1533(b)(3)(A).
Proposed paragraph (c)(3) refers to inclusion in a petition of a description of the magnitude and immediacy of threats. This request is included to assist the U.S. Fish and Wildlife Service in assessing the listing priority number of species for which a warranted-but-precluded finding is made under the U.S. Fish and Wildlife Service's (FWS)
Proposed paragraph (c)(5) is a revision of the language in current paragraph (b)(2) that describes information a petitioner may include for consideration in designating critical habitat in conjunction with a listing or reclassification. We propose to delete the clause “and indicates any benefits and/or adverse effects on the species that would result from such designation” because this information is not relevant to the biological considerations that underlay a listing determination.
Similarly, proposed new § 424.14(d) sets forth the kinds of information a petitioner should include in a petition to revise critical habitat. The Secretary's determination as to whether the petition provides “substantial scientific information indicating that the revision may be warranted” (16 U.S.C. 1533(b)(3)(D)(i)) will depend in part on the degree to which the petition includes this type of information.
The items set out at proposed new paragraph (d) are an expanded and reworded version of the substance of current paragraph (c)(2). Proposed paragraph (d)(1) would confirm that, to justify a revision to critical habitat, it is important to demonstrate that the existing designation includes areas that should not be included or does not include areas that should be included, and to discuss the benefits of designating additional areas, or the reasons to remove areas from an existing designation. Additionally, including maps with enough detail to clearly identify the particular area(s) being recommended for inclusion or exclusion will be useful to the Services in making a petition finding.
Proposed paragraph (d)(2) is drawn from the substance of current paragraphs (c)(2)(i) and (ii), which have been reorganized and clarified. Proposed paragraph (d)(2) would clarify that several distinct pieces of information are needed to analyze whether any area of habitat should be designated, beginning with a description of the “physical or biological features” that are essential for the conservation of the species and which may require special management. Proposed paragraphs (d)(3) and (d)(4) would detail the informational needs the Services will have in considering whether to add or remove habitat from the designation comprising specific areas occupied by the species at the time of listing, respectively. Proposed paragraph (d)(5) would highlight the particular informational needs associated with evaluating habitat that was unoccupied at the time of listing—that is, information that fulfills the statutory requirement that any specific areas designated are “essential to the conservation of the species.” See section 3(5)(A)(ii) of the Act, 16 U.S.C. 1532(5)(A)(ii).
Proposed paragraph (d)(6) would provide additional direction that a petition should include information demonstrating that the petition provides a complete presentation of the relevant facts, including an explanation of what sources of information the petitioner consulted in drafting the petition, as well as any relevant information known to the petitioner not included in the petition.
Proposed new § 424.14(e) sets out the possible responses the Secretary may make to requests. Proposed paragraph (e)(1) would clarify that a request that fails to satisfy the mandatory elements set forth in proposed paragraph (b) may be returned by the Services without a further determination on the merits of the request. In light of the volume of requests received by the Services, it is critical that we have the option to identify early on those requests that on their faces are incomplete, in order to ensure that agency resources are not diverted from higher priorities. Although this authority is implied in the current regulations, making the point explicit in the revised regulations would provide additional notice to petitioners, and lead to better-quality requests and more efficient and effective (in terms of species conservation) use of agency resources. Proposed § 424.14(e)(2) would confirm that a request that complies with the mandatory requirements will be acknowledged in writing as a petition within 30 days of receipt (as required under current 424.14(a)).
Proposed paragraph (f) would address the situation in which a petitioner supplements a petition with additional information at a later date, requesting that the Secretary take the new information into account. The Services' standard practice in these circumstances has been to notify petitioners of receipt of this information and inform them that, in order to meaningfully consider this information, the Services consider the statutory deadlines to now run from the receipt date of the supplemental information. The proposed provision would clarify our position that the statutory period applicable to making any required finding would be re-set to begin running from the time such additional information is received by the Secretaries. In effect, the supplemental information, together with the original petition, will be considered a new petition that constructively supplants the original petition and re-sets the period for making a 90-day finding under section 4(b)(3)(A) of the Act. This is consistent with 16 U.S.C. 1533(b)(3)(A) and 1533(b)(3)(D)(i), which direct the Services to determine whether “the petition” presents substantial information indicating that the petitioned action may be warranted. Supplementing the information supporting a petition is, therefore, constructively the same as submitting a new petition. The Services propose to make this explicit in the regulations to ensure that the Services have adequate time to consider the supplemental information relevant to a petition. Also, by giving clear notice of this process, the Services can encourage petitioners to assemble all the information they believe necessary to support the petition prior to sending it to the Services for consideration, further enhancing the efficiency of the petition process.
Proposed § 424.14(g) would explain the kinds of findings the Services may make on a petition to list, delist, or reclassify a species and the standards to be applied in that process. Proposed paragraph (g)(1) is drawn largely from current paragraph (b)(1), with some revisions. Most significantly, proposed paragraph (g)(1)(i) would clarify the substantial-information standard by defining it as credible scientific and commercial information that would lead a reasonable person conducting an impartial scientific review to conclude that the action proposed in the petition
In § 424.14(g)(1)(ii), we propose to add a new sentence to clarify that the Services may consider information that is readily available in the relevant agency's possession at the time it makes a 90-day finding. For purposes of § 424.14(g)(1), the Services recognize that the statute places the obligation squarely on the petitioner to present the requisite level of information to meet the “substantial information” test, and that the Services therefore should not seek to supplement petitions. (Please see the Columbian sharp-tailed grouse case (
The Act contemplates a two-step process in reviewing a petition. The 12-month finding is meant to be the more in-depth determination and follows a status review, while the 90-day finding is meant to be a quicker evaluation of a more limited set of information. However, based on their experience in administering the Act, the Services conclude that evaluating the information presented in the petition in a vacuum can lead to inaccurately supported decisions and misdirection of resources away from higher priorities. It may be difficult for the Services to bring informed expertise to their evaluation of the facts and claims alleged in a petition without considering the petition in the context of other information of the sort that the Services maintain in their possession and would routinely consult in the course of their work. It is reasonable for the Services to be able to examine the veracity of the information included in a petition prior to committing limited Federal resources to the significant expense of a status review.
The Act's legislative history also supports explicitly recognizing the discretion that the Services have to bring their informed expertise and judgment to bear in reviewing petitions. In a discussion of judicial review of the Secretary's 90-day findings on petitions, a House Conference report states that, when courts review such a decision, the “object of [the judicial] review is to determine whether the Secretary's action was arbitrary or capricious
The precise range of information properly considered readily available in the agency's possession will vary with circumstances, but could include the information physically held by any office within the Services (including, for example, the NMFS Science Centers and FWS Field Offices), and may also include information stored electronically in databases routinely consulted by the Services in the ordinary course of their work. For example, it would be appropriate to consult online databases such as the Integrated Taxonomic Information System (
Proposed paragraph (g)(1)(iii) would explain how the substantial-information standard applies to a petition to list, delist, or reclassify a species that is submitted after the Secretary has already conducted a status review of that species and determined that the petitioned action is not warranted, or made another listing action; such petitions are referred to as “subsequent petitions.” Subsequent petitions may follow a 12-month finding or a final determination on a proposed listing, reclassification, or delisting rule. The prior status review and determination are part of the information readily available in the agency's possession for consideration in evaluating the subsequent petition, and they play an important role in setting the context for the 90-day finding. In addition, 5-year reviews completed for listed species would be considered in our evaluation of a petition to delist or reclassify. Although the substantial-information standard applies to all petitions under section 4(b)(3)(A) of the Act, the standard's application depends on the context in which the finding is being made. The context of a finding after a status review and determination is quite different than that before any status review has been completed. Thus, proposed § 424.14(g)(1)(iii) requires that for a subsequent petition to provide substantial information the petition must provide sufficient new information or analysis such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted, despite the previous determination. (Please see the Columbian sharp-tailed grouse case (
A reasonable person would not conclude that the petitioned action may be warranted if the petition fails to present any substantial new information or analysis that might alter the conclusions of the Services' prior determination. Following a positive 90-day finding on a petition, the Services gather all available scientific and
One corollary of this conclusion is that the Secretary may find that a subsequent petition fails the “substantial information” standard, even though a prior petition seeking the same action initially received a positive 90-day finding. Because the prior status review, and resultant 12-month finding, are now a part of the information readily available in the agency's possession, the subsequent petition is on a different footing from the prior petition. Although similar information may have qualified as “substantial” when it was initially evaluated, it may not necessarily be considered substantial in the context of the completed status review.
The completion of a status review of a species consumes considerable agency resources. The application of § 424.14(g)(1)(iii) is intended to assist the Services in making judicious use of those resources, by eliminating unnecessary duplication of effort in responding to a petition when the Services have already evaluated the species in question and no substantial new information or analysis is available. This would allow the Services to instead concentrate on petitions for actions that will best make use of limited agency resources and potentially result in greater conservation value for a species that may be in need of the protections of the Act.
Proposed § 424.14(g)(2) is substantially the same as current paragraph (b)(3). Among other changes, we propose new language clarifying the standard for making expeditious-progress determinations in warranted-but-precluded findings, including (in paragraph (g)(2)(iii)(B)) a clear acknowledgement that such determinations are to be made in light of resources available after complying with nondiscretionary duties, court orders, and court-approved settlement agreements to take actions under section 4 of the Act. Current paragraph (b)(4) would be redesignated as paragraph (g)(3), although we propose to remove the reference in the current language that “no further finding of substantial information will be required,” as it merely repeats statutory language.
Proposed § 424.14(h) would explain the kinds of findings that the Services may make on a petition to revise critical habitat. Proposed paragraph (h)(1) is essentially the same as current paragraph (c)(1) and describes the standard applicable to the Secretary's finding at the 90-day stage. Please refer to the discussion of the “substantial information” test discussed in the description of § 424.14(g)(1), above. Proposed paragraph (h)(2) would specifically acknowledge, consistent with the statute, that such finding may, but need not, take a form similar to one of the findings called for at the 12-month stage in the review of a petition to list, delist, or reclassify species. Section 4(a)(3)(A) of the Act establishes a mandatory duty to designate critical habitat for listed species to the maximum extent prudent and determinable at the time of listing (in subsection (A)(i)), but respecting subsequent revision of such habitat provides only that the Services “
That the Services have broad discretion to decide when it is appropriate to revise critical habitat is also evident in the differences between the Act's provisions discussing petitions to revise critical habitat, on the one hand, and the far more prescriptive provisions regarding the possible findings that can be made at the 12-month stage on petitions to list, delist, or reclassify species, on the other. Section 4(b)(3)(B) includes three detailed and exclusive options for 12-month findings on petitions to list, delist, or reclassify species. In contrast, section 4(b)(3)(D)(ii) requires only that the Secretary (acting through the Services) “determine how he intends to proceed with the requested revision” and promptly publish notice of such intention in the
Further, the legislative history for the 1982 amendments that added the petition provisions to the Act confirms that Congress intended to grant discretion to the Services in determining how to respond to petitions to revise critical habitat. After discussing at length the detailed listing petition provisions and their intended meaning, Congress said of the critical habitat petition requirements, “Petitions to revise critical habitat designations may be treated differently.” H.R. Rep. No. 97-835, at 22 (1982),
The Services may find in particular situations that terminology similar to that set out in the listing-petition provisions is useful for explaining their intended response at the 12-month stage on a petition to revise critical habitat. For example, the Services have, at times, used the term “warranted” to indicate that requested revisions of critical habitat would satisfy the definition of critical habitat in section 3 of the Act. However, use of the listing-petition terms in a finding on a petition to revise critical habitat would not mean that the associated listing-petition procedures and timelines apply or are required to be followed with respect to the petition. For example, if the Services find that a petitioned revision of critical habitat is, in effect, “warranted,” in that the areas would meet the definition of “critical habitat,” that finding would not require the Services to publish a proposed rule to implement the revision in any particular timeframe. Similarly, a finding on a petition to revise critical habitat that uses the phrase “warranted but precluded,” or a functionally similar phrase, to describe the Secretary's intention would not trigger the
Though the Services have discretion to determine how to proceed with a petition to revise critical habitat, the Services believe that certain factors respecting conservation and recovery of the relevant species are likely to be relevant and potentially important to most such determinations. Such factors may include, but are not limited to: The status of the existing critical habitat for which revisions are sought (
Proposed § 424.14(i) would be substantially the same as current paragraph (d), regarding petitions to initially designate critical habitat or for adoption of special rules under section 4(d) of the Act.
Proposed § 424.14(j) would describe the process for a petitioner to withdraw a petition, and the Services' discretion to discontinue action on the withdrawn petition. Although the Services may discontinue work on a 90-day or 12-month finding for a petition that is withdrawn, in the case of a petition to list a species, the Services may use their own process to evaluate whether the species may warrant listing and whether it should become a candidate for listing. In the case of the withdrawal of a petition to delist, uplist or downlist a species, the Services may use the 5-year review process to further evaluate the status of the species, or elect to consider the issue at any time.
Any final rule based on this proposal will consider information and recommendations timely submitted from all interested parties. We solicit comments, information, and recommendations from governmental agencies, Native American tribes, the scientific community, industry groups, environmental interest groups, and any other interested parties on this proposed rule. All comments and materials received by the date listed in
We request comments and information evaluating each of several alternatives for insuring greater inclusion of relevant data supporting petitions, including information available from State conservation agencies within the range of the species. We specifically seek comment on proposed paragraph (b)(9), requiring petitioner coordination with States prior to submission of a petition to the Fish and Wildlife Service, and paragraph (b)(10), requiring certification that all reasonably available information, including relevant information publicly available from affected States' Web sites, has been gathered and appended to a petition filed with either Service. We note that either of these two provisions could stand alone, or both could be included in a final rule, as shown in the proposed regulatory text. We also suggested an alternative to (b)(10) that would require a certification only that relevant information from affected States' Web sites has been gathered and appended to a petition filed with either Service. We seek information on which alternatives, alone or in combination, would be most consistent with law and best achieve our goals of fostering better-informed petitions and greater cooperation with States. We also seek comments and information regarding any other alternative the public may suggest to achieve the goals of greater coordination with States and better-supported petitions. Finally, we seek comment on the criteria in paragraph (d), including comments on the utility of the criteria, the adequacy of the criteria, and the effect of the criteria on the workload on the petitioner.
You may submit your information concerning this proposed rule by one of the methods listed in
Information and supporting documentation that we receive in response to this proposed rule will be available for you to review at
Executive Order 12866 provides that the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This proposed rule is consistent with Executive Order 13563, and in particular with the requirement of retrospective analysis of existing rules, designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601
The proposed rule would revise and clarify the regulations governing documentation needed by the Services in order to effectively and efficiently evaluate petitions under the Act. While some of the changes may require petitioners to expend some time (such as coordination with State(s)) and effort (providing complete petitions), we do not expect this will prove to be a hardship, economically or otherwise. Further, we expect the effect on any external entities, large or small, would likely be positive, as they will lead to improved quality of petitions through expanded content requirements and guidelines.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) On the basis of information contained in the
(b) This proposed rule would not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that is, this proposed rule is not a “significant regulatory action”' under the Unfunded Mandates Reform Act. This proposed rule would impose no obligations on State, local, or tribal governments.
In accordance with Executive Order 12630, this proposed rule would not have significant takings implications. This proposed rule would not pertain to “taking” of private property interests, nor would it directly affect private property. A takings implication assessment is not required because this proposed rule (1) would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule would substantially advance a legitimate government interest (conservation and recovery of endangered and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132, we have considered whether this proposed rule would have significant Federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule pertains only to the petition process under the Endangered Species Act, and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.
This proposed rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988. This proposed rule would clarify the petition process under the Endangered Species Act.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis.
We are analyzing this proposed regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 1-6 and 8), and National Oceanic and Atmospheric Administration (NOAA) Administrative Order 216-6. We invite the public to comment on the extent to which this proposed regulation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this regulation.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule, if made final, is not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule or policy we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
Administrative practice and procedure, Endangered and threatened species.
Accordingly, we propose to amend part 424, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1531
(a)
(b)
(1) The name, signature, address, telephone number, if any, and the association, institution, or business affiliation, if any, of the petitioner;
(2) The scientific and any common name of the species that is the subject of the petition. One and only one species may be the subject of a petition;
(3) A clear indication of the administrative action the petitioner seeks (
(4) A detailed narrative justification for the recommended administrative action that contains an analysis of the information presented;
(5) Literature citations that are specific enough for the Secretary to locate the information cited in the petition, including page numbers or chapters as applicable;
(6) Electronic or hard copies of any supporting materials (
(7) For a petition to list a species, information to establish whether the subject entity is a “species” as defined in the Act.
(8) For a petition to list a species, delist a species, or change the status of a listed species, information on the current geographic range of the species, including range States or countries.
(9) For any petition submitted to the U.S. Fish and Wildlife Service pertaining to species found within the United States, a certification:
(i) That a copy of the petition was provided to the State agency(ies) responsible for the management and conservation of fish, plant, or wildlife resources in each State where the species occurs at least 30 days prior to submission to the Service; and
(ii) That the State agency(ies) either:
(A) Provided to the petitioner data or written comments regarding the accuracy or completeness of the petition, and all those data or comments have been clearly labeled as such and appended to the petition; or
(B) Did not provide to the petitioner in response any data or written comments regarding the accuracy or completeness of the petition.
(10) Certification that the petitioner has gathered all relevant information (including information that may support a negative 90-day finding) that is reasonably available, such as that available on Web sites maintained by the affected States, and has clearly labeled this information and appended it to the petition.
(c)
(1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available;
(2) Identification of the factors under section 4(a)(1) of the Act that may affect the species and where these factors are acting upon the species;
(3) Whether any or all of the factors alone or in combination identified in section 4(a)(1) of the Act may cause the species to be an endangered species or threatened species (
(4) Information on adequacy of regulatory protections and conservation activities initiated or currently in place that may protect the species or its habitat; and
(5) Except for petitions to delist, information that is useful in determining whether a critical habitat designation for the species is prudent and determinable (see § 424.12), including information on recommended boundaries and physical features and the habitat requirements of the species; such information, however, will not be a basis for determining whether the petition has presented substantial information that the petitioned action may be warranted.
(d)
(1) A description and map(s) of areas that the current designation does not include that should be included, or includes that should no longer be included, and the benefits of designating or not designating these specific areas as critical habitat. Petitioners should include available data layers if feasible;
(2) A description of the physical or biological features essential for the conservation of the species and whether they may require special management considerations or protection;
(3) For any areas petitioned to be added to critical habitat within the geographical area occupied by the species at time it was listed, information indicating that the specific areas contain the physical or biological features that are essential to the conservation of the species and may require special management considerations or protection. The petitioner should also indicate which specific areas contain which features;
(4) For any areas petitioned for removal from currently designated critical habitat within the geographical area occupied by the species at the time it was listed, information indicating that the specific areas do not contain features (including features that allow the area to support the species periodically, over time) that are essential to the conservation of the species, or that these features do not require special management consideration or protections;
(5) For any areas petitioned to be added to or removed from critical habitat that were outside the geographical area occupied by the species at the time it was listed, information indicating why the petitioned areas are or are not essential for the conservation of the species; and
(6) Information demonstrating that the petition includes a complete presentation of the relevant facts, including an explanation of what sources of information the petitioner consulted in drafting the petition, as well as any relevant information known
(e)
(2) If a request does meet the requirements set forth at paragraph (b) of this section, the Secretary will acknowledge, in writing, the receipt of a petition, within 30 days of receipt.
(f)
(g)
(i) For the purposes of this section, “substantial scientific or commercial information” refers to credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.”
(ii) The Secretary will consider the information referenced at paragraphs (b), (c), and (f) of this section. The Secretary may also consider information readily available in the agency's possession at the time the determination is made in reaching his or her initial finding on the petition. The Secretary will not consider any supporting materials cited by the petitioner that are not provided to us by the petitioner in the format required at paragraph (b)(6) of this section or otherwise readily available in our possession.
(iii) The “substantial scientific or commercial information” standard must be applied in light of any prior determinations made by the Secretary for the species that is the subject of the petition. Where the Secretary has already conducted a status review of that species (whether in response to a petition or on the Secretary's own initiative) and made a final listing determination, any petition seeking to list, reclassify, or delist that species will be considered a “subsequent petition” for purposes of this section. A subsequent petition provides “substantial scientific or commercial information” only if it provides sufficient new information or analysis not considered in the previous determination (or previous 5-year review, if applicable) such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous determination.
(2) If a positive 90-day finding is made, the Secretary will commence a review of the status of the species concerned. Within 12 months of receipt of the petition, the Secretary will make one of the following findings:
(i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the
(ii) The petitioned action is warranted, in which case the Secretary will promptly publish in the
(iii) The petitioned action is warranted, but:
(A) The immediate proposal and timely promulgation of a regulation to implement the petitioned action is precluded because of other pending proposals to list, delist, or change the listed status of species; and
(B) Expeditious progress is being made to list, delist, or change the listed status of qualified species, in which case such finding will be promptly published in the
(3) If a finding is made under paragraph (g)(2)(iii) of this section with regard to any petition, the Secretary will, within 12 months of such finding, again make one of the findings described in paragraph (g)(2) of this section with regard to such petition.
(h)
(i) For the purposes of this section, “substantial scientific information” refers to credible scientific information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the revision proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific information will not be considered “substantial information.”
(ii) The Secretary will consider the information referenced at paragraphs (b), (d), and (f) of this section. The Secretary may also consider other information readily available in the agency's possession at the time the determination is made in reaching its initial finding on the petition. The Secretary will not consider any supporting materials cited by the petitioner that are not provided to us by the petitioner in the format required by paragraph (b)(6) of this section or otherwise readily available in our possession.
(2) Within 12 months after receiving a petition found to present substantial information indicating that revision of a critical habitat designation may be warranted, the Secretary will determine how to proceed with the requested revision, and will promptly publish notice of such intention in the
(i)
(j)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule.
NMFS proposes to implement annual management measures and harvest specifications to establish the allowable catch levels (
Comments must be received by June 5, 2015.
You may submit comments on this document identified by NOAA-NMFS-2015-0064 by any of the following methods:
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Copies of the report “Assessment of Pacific Sardine Resource in 2015 for U.S.A. Management in 2015-2016” may be obtained from the West Coast Regional Office (see
Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.
During public meetings each year, the estimated biomass for Pacific sardine is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with the calculated overfishing limit (OFL), available biological catch (ABC), and HG, along with recommendations and comments from the Team, Subpanel, and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. NMFS manages the Pacific sardine fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the FMP. Annual specifications published in the
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As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery quota, includes a CUTOFF parameter which has been set as a biomass amount of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Therefore, because this year's biomass estimate is below that
At the April 2015 Council meeting, the Council adopted the “Assessment of the Pacific Sardine Resource in 2015 for U.S.A. Management in 2015-2016” completed by NMFS Southwest Fisheries Science Center and the resulting Pacific sardine biomass estimate of 96,688 mt. Based on recommendations from its SSC and other advisory bodies, the Council recommended and NMFS is proposing, an OFL of 13,227 mt, an ABC of 12,074 mt, and a prohibition on sardine catch unless it is harvested as part of either the live bait or tribal fishery or incidental to other fisheries for the 2015-2016 Pacific sardine fishing year. As additional conservation measures, the Council also recommended and NMFS is proposing an ACL of 7,000 mt and an annual catch target (ACT) of 4,000 mt under which the incidental catch of Pacific sardine in other CPS fisheries would be managed. Incidental catch under the ACT would also be subject to the following management controls to reduce targeting and potential discard of Pacific sardine: (1) A 40 percent by weight incidental catch rate when Pacific sardine are landed with other CPS until a total of 1,500 mt of Pacific sardine are landed, (2) after 1,500 mt have been caught the allowance would be reduced to 30 percent, and (3) when 4,000 mt is reached the incidental per landing allowance would be reduced to 5 percent for the remainder of the 2015-2016 fishing year. Additionally, the council adopted a 2 mt incidental per landing allowance in non-CPS fisheries. Because Pacific sardine is known to comingle with other CPS stocks, these incidental allowances were adopted to allow for the continued prosecution of these other important CPS fisheries and reduce the potential discard of sardine.
The NMFS West Coast Regional Administrator would publish a notice in the
In the previous 3 fishing years the Quinault Indian Nation requested, and NMFS approved, set-asides for the exclusive right to harvest Pacific sardine in the Quinault Usual and Accustomed Fishing Area off the coast of Washington State, pursuant to the 1856 Treaty of Olympia (Treaty with the Quinault). For the 2015-2016 fishing season the Quinault Indian Nation has requested that NMFS provide a set-aside of 1,000 mt (3,000 mt less than was requested and approved in 2014-2015) and NMFS is considering the request.
Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2015 for U.S.A. Management in 2015-2016” (see
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.
These proposed specifications are exempt from review under Executive Order 12866 because they contain no implementing regulations.
An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as required by section 3 of the Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the
On June 12, 2014, the Small Business Administration (SBA) issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467). The rule increased the size standard for Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $5.0 to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. 78 FR 33656, 33660, 33666 (See Table 1). NMFS conducted its analysis for this action in light of the new size standards.
The purpose of this proposed rule is to conserve the Pacific sardine stock by preventing overfishing, so that directed fishing may occur in future years. This is accomplished by implementing the 2015-2016 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The small entities that would be affected by the proposed action are the vessels that fish for Pacific sardine as part of the West Coast CPS small purse seine fleet. As stated above, the U.S. Small Business Administration now defines small businesses engaged in finfish fishing as those vessels with annual revenues of $20.5 million or less. Under the former, lower standards, all entities subject to this action in previous years were considered small entities, and under the new standards they continue to be considered small. In 2014, there were approximately 81 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast; 58 vessels in the Federal CPS limited entry fishery off California (south of 39 N. lat.), and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2014 for the West Coast CPS finfish fleet was well below $20.5 million; therefore, all of these vessels therefore are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities and therefore will impact a substantial number of these small entities in the same manner. Therefore, this rule would not create disproportionate costs between small and large vessels/businesses.
For the 2014-2015 fishing year, approximately 22,076 mt were available for harvest by the directed non-tribal commercial fishery (this includes 2,500 rolled over from the tribal set aside). Approximately 19,440 mt (approximately 3,378 mt in California and 16,023 mt in Oregon and Washington) of this allocation was harvested during the 2014-2015 fishing season, for an estimated ex-vessel value of $8.8 million.
The CPS FMP and its implementing regulations require NMFS to annually set an OFL, ABC, ACL and HG or ACT for the Pacific sardine fishery based on the specified harvest control rules in the FMP applied to the current stock biomass estimate for that year. The derived annual HG or ACT is the level typically used to manage the principle commercial sardine fishery and is the harvest level typically used by NMFS for profitability analysis each year. As stated above, the FMP dictates that when the estimated biomass drops below a certain level (150,000 mt) that there is no HG. Therefore, purposes of profitability analysis, this action is essentially proposing that an HG of zero for the 2015-2016 Pacific sardine
However, revenue derived from harvesting Pacific sardine is typically only one source of fishing revenue for a majority of the vessels that harvest Pacific sardine; as a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS/sardine vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, mackerel, and in particular squid, making Pacific sardine only one component of a multi-species CPS fishery. For example, market squid have been readily available to the fishery in California over the last three years with total annual ex-vessel revenue averaging approximately $66 million over that time, compared to an annual average ex-vessel from sardine of $16 million over that same time period. Additionally, some sardine vessels that operate off of Oregon and Washington also fish for salmon in Alaska or squid in California during times of the year when sardine are not available. The purpose of the proposed incidental allowances under this action are to ensure the vessels impacted by this sardine action can still access these other profitable fisheries while still limited the harvest of sardine.
These vessels typically rely on multiple species for profitability because abundance of sardine, like the other CPS stocks, is highly associated with ocean conditions and different times of the year, and therefore are harvested at various times and areas throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore, as abundance levels and markets fluctuate, it has necessitated that the CPS fishery as a whole rely on a group of species for its annual revenues. Therefore, although there will a reduction in sardine revenue for the small entities affected by this proposed action as compared to the previous season, it is difficult to predict exactly how this reduction will impact overall annual revenue for the fleet.
No significant alternatives to this proposed rule exist that would accomplish the stated objectives of the applicable statutes and which would minimize any significant economic impact of this proposed rule on the affected small entities. The CPS FMP and its implementing regulations require NMFS to calculate annual harvest levels by applying the harvest control rule formulas to the current stock biomass estimate. Therefore, if the estimated biomass decreases or increases from one year to the next, so do the applicable quotas. Determining the annual harvest levels merely implements the established procedures of the FMP with the goal of continuing to provide expected net benefits to the nation, regardless of what the specific annual allowable harvest of Pacific sardine is determined to be.
There are no reporting, record-keeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.
This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.
16 U.S.C. 1801
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Mink Survey. The target population will be pulled from farmers who have reported mink production in the past, trade magazines, or grower's association's lists. The questionnaire that NASS is planning to use is the same as what was used in previous years, with one additional pelt color class being added to both the producer and price questionnaires. Any additional changes to the questionnaires would result from requests by industry data users.
Comments on this notice must be received by July 20, 2015 to be assured of consideration.
You may submit comments, identified by docket number 0535-0212, by any of the following methods:
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R. Renee Picanso, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at (202) 690-2388 or at
These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985 as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501,
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),”
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
Bureau of Industry and Security, Department of Commerce.
Notice; annual reporting requirements.
This notice is to remind the public that U.S. firms are required to
Reports should be addressed to “Offsets Program Manager, U.S. Department of Commerce, Office of Strategic Industries and Economic Security, Bureau of Industry and Security (BIS), Room 3878, Washington, DC 20230.”
Ronald DeMarines, Office of Strategic Industries and Economic Security, Bureau of Industry and Security, U.S. Department of Commerce, telephone: 202-482-3755; fax: 202-482-5650; email:
Section 723(a)(1) of the Defense Production Act of 1950, as amended (DPA) (50 U.S.C. app. 2172 (2009)), requires the President to submit an annual report to Congress on the impact of offsets on the U.S. defense industrial base. Section 723(a)(2) directs the Secretary of Commerce (Secretary) to prepare the President's report and to develop and administer the regulations necessary to collect offsets data from U.S. defense exporters.
The authorities of the Secretary regarding offsets have been delegated to the Under Secretary of Commerce for Industry and Security. The regulations associated with offsets reporting are set forth in part 701 of title 15 of the Code of Federal Regulations. Offsets are compensation practices required as a condition of purchase in either government-to-government or commercial sales of defense articles and/or defense services, as defined by the Arms Export Control Act and the International Traffic in Arms Regulations. For example, a company that is selling a fleet of military aircraft to a foreign government may agree to offset the cost of the aircraft by providing training assistance to plant managers in the purchasing country. Although this distorts the true price of the aircraft, the foreign government may require this sort of extra compensation as a condition of awarding the contract to purchase the aircraft. As described in the regulations, U.S. firms are required to report information on contracts for the sale of defense articles or defense services to foreign countries or foreign firms that are subject to offsets agreements exceeding $5,000,000 in value. U.S. firms are also required to report annually information on offsets transactions completed in performance of existing offsets commitments for which offsets credit of $250,000 or more has been claimed from the foreign representative.
Commerce's annual report to Congress includes an aggregated summary of the data reported by industry in accordance with the offsets regulations and the DPA (50 U.S.C. app. 2172 (2009)). As provided by section 723(c) of the DPA, BIS will not publicly disclose individual firm information it receives through offsets reporting unless the firm furnishing the information specifically authorizes public disclosure. The information collected is sorted and organized into an aggregate report of national offsets data, and therefore does not identify company-specific information.
In order to enable BIS to prepare the next annual offset report reflecting calendar year 2014 data, U.S. firms must submit required information on offsets agreements and offsets transactions from calendar year 2014 to BIS no later than June 15, 2015.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On May 4, 2015, the United States Court of International Trade (the Court) issued
Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in
Cindy Robinson, 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) 482-3797.
On April 15, 2013, the Department issued the
On July 22, 2014, the Court remanded the Department's
On December 4, 2014, the Department filed the Final Remand Results with the Court, in which it continued to find evidence of dumping during the POR, drew an inference that the behavior of uncooperative respondents reflects rational choice, and, thus, found it reasonable to assign an above
In
Because there is now a final court decision, the Department is amending the
Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. In the event the Court's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise exported by the
Since the
This notice is issued and published in accordance with sections 516A(e), 751(a)(1), and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare an environmental impact statement (EIS); notice of initiation of scoping process; notice of public scoping meetings; request for comments.
The Mid-Atlantic Fishery Management Council announces its intent to prepare, in cooperation with NMFS, either an amendment to the fishery management plan for golden tilefish or a new fishery management plan. In either case, the reason for action is to develop conservation and management measures for blueline tilefish off the Mid-Atlantic. To support this effort, the Council may prepare an environmental impact statement in accordance with the National Environmental Policy Act to analyze the impacts of any proposed management measures. This notice announces a public process for determining the scope of issues to be addressed, for identifying concerns and potential alternatives related to management of blueline tilefish off the Mid-Atlantic, and for determining the appropriate level of environmental analysis. This notice alerts the interested public of the scoping process, the potential development of an environmental impact statement or environmental assessment as appropriate, and provides for public participation in that process. Five scoping hearings will be held in June 2015 for this action.
The meetings will be held between June 1, 2015, and June 18, 2015, as described below. Written
There will be five scoping meetings with the following dates/times/locations:
1. Monday June 1, 2015, 6:00 p.m. Hyatt Place Long Island/East End. 451 E Main St, Riverhead, NY 11901. Telephone: (631) 208-0002.
2. Tuesday June 2, 2015, 6:00 p.m. Congress Hall Hotel. 251 Beach Ave, Cape May, NJ 08204. Telephone: (888) 944-1816.
3. Tuesday June 16, 2015, 6:00 p.m. Dare County Administrative Building. Commissioners Meeting Room, 954 Marshall C. Collins Drive, Manteo, NC 27954. Telephone: (252) 475-5700.
4. Wednesday June 17, 2015, 6:00 p.m. Hilton Virginia Beach Oceanfront. 3001 Atlantic Ave, Virginia Beach, VA 23451. Telephone: (757) 213-3000.
5. Thursday, June 18, 5:00 p.m. Ocean City Chamber of Commerce. Eunice Q. Sorin Visitor & Conference Center. 12320 Ocean Gateway, Ocean City, Maryland 21842. Telephone: (410) 213-0552.
• Email to the following address:
• Mail or hand-deliver to Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, Delaware 19901. Mark the outside of the envelope “Blueline Tilefish Scoping Comments”; or
• Fax to (302) 674-5399.
• Comments may also be provided verbally at any of the public scoping meetings.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The MAFMC's Web site,
The South Atlantic Fishery Management Council (SAFMC) manages blueline tilefish south of the Virginia/North Carolina border. There are currently (as of May 11, 2015) no management measures for blueline tilefish in Federal waters north of North Carolina. Virginia and Maryland have instituted regulations for state waters, but catches in any Federal waters north of North Carolina may be landed from Delaware north without restriction. Blueline tilefish are likely susceptible to overfishing due to their life history (relatively long-lived, sedentary, slow growing, and late maturing) so the MAFMC is considering developing conservation and management measures. These measures could be considered via an amendment to the MAFMC's Golden Tilefish Fishery Management Plan (FMP), or a new FMP for blueline tilefish and/or other deep-water fish such as sand tilefish, snowy grouper, and black-bellied rosefish. Management measures could include a definition of the management unit, as well as acceptable biological catches, annual catch limits, essential fish habitat, trip limits and/or minimum fish sizes for the commercial or recreational fisheries, etc.
For waters north of North Carolina, in response to recent catch increases, the MAFMC has already requested NMFS take emergency action to implement a 300-lb (136-kg) (whole weight) commercial trip limit and a seven-fish per person recreational possession limit. This request was the result of a February 25, 2015, MAFMC meeting, the details of which may be found at:
The SAFMC has also requested that NMFS (via an emergency rule) extend management measures recently enacted in the Southeastern Region (March 30, 2015; 80 FR 16583) north to apply to all Federal waters off the U.S. East Coast. Because any emergency rule can only be in effect for a maximum of 366 days, the MAFMC is moving ahead with scoping for an amendment or new FMP to develop long-term management and conservation measures for blueline tilefish off the Mid-Atlantic.
This is the first and best opportunity for members of the public to raise concerns related to the scope of issues that will be considered in the Council's action. The MAFMC needs your input both to identify management issues and develop effective alternatives. Potential management measures could include a definition of the management unit, as well as acceptable biological catches, annual catch limits, essential fish habitat, trip limits and/or minimum fish sizes for the commercial or recreational fisheries, and/or other measures that may be deemed appropriate. Your comments early in the FMP/amendment development process will help us address issues of public concern in a thorough and appropriate manner. Comment topics could include the scope of issues in the FMP or amendment, concerns and potential alternatives related to blueline tilefish management. Comments can be made during the scoping hearings as detailed above or in writing. After scoping, the MAFMC plans to develop a range of management alternatives to be considered and prepare a draft environmental impact statement (EIS) and/or other appropriate environmental analyses. A new FMP would require an EIS, while an amendment to the existing Golden Tilefish FMP may require an EIS or an Environmental Assessment. These analyses will consider the impacts of the management alternatives being considered, as required by National Environmental Policy Act. Following a review of any comments on the draft analyses, the MAFMC will then choose preferred management measures for submission with a Final EIS or Environmental Assessment to the Secretary of Commerce for review and consideration for approval. Approved management measures would be implemented through publication of proposed and final rules, which include additional opportunity for public comment.
These meetings are 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.
Bureau of Consumer Financial Protection.
Notice and request for information.
The Bureau of Consumer Financial Protection (Bureau or CFPB) is seeking comments from the public related to the market for student loan servicing. The submissions to this request for information will serve to assist market participants and policymakers on potential options to improve borrower service, reduce defaults, develop best practices, assess consumer protections, and spur innovation.
Comments must be received on or before July 13, 2015.
You may submit comments, identified by Docket No. CFPB-2015-0021, by any of the following methods:
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All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments generally will not be edited to remove any identifying or contact information.
For general inquiries, submission process questions or any additional information, please contact Monica Jackson, Office of the Executive Secretary, at 202-435-7275.
The Consumer Financial Protection Bureau is engaged in a joint effort with the U.S. Department of Education and the U.S. Department of the Treasury to identify initiatives to strengthen student loan servicing. This request seeks comments related to the critical role that servicing plays in facilitating repayment of student loans, in order to improve customer service, identify innovative practices and business models, and assess the current framework that exists regarding the consumer protection for student loan borrowers in repayment.
The submissions to this request for information may serve to assist federal and state agencies in prioritizing resources and to assist financial services providers in developing best practices. The public comments may also be used to inform a report required by a Presidential Memorandum signed on March 10, 2015.
The deadline for submission of comments is July 13, 2015.
The Bureau encourages comments from the public, including:
• Student loan borrowers;
• Organizations representing students and student loan borrowers;
• Innovators, technology providers, and recent entrants into the student loan market;
• Institutions of higher education and affiliated parties;
• Financing services providers, including but not limited to lenders and servicers in the mortgage, credit card, and student loan markets;
• Trust administrators of student loan asset-backed securities;
• Credit reporting agencies;
• Debt collectors;
• Organizations promoting financial education;
• Civil rights groups; and
• Nationally recognized statistical rating organizations.
Please note that the Bureau is not soliciting individual student account information in response to this notice and request for information, nor is the Bureau seeking personally identifiable information (PII) regarding student accounts from the parties or any third party.
All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments generally will not be edited to remove any identifying or contact information.
In the last decade, the student loan market has undergone rapid growth and change. Today, the Consumer Financial Protection Bureau (the Bureau) estimates that there are over 40 million borrowers with student loans who collectively owe over $1.2 trillion.
Compared to other large markets of consumer financial products (such as residential mortgages and credit cards),
While the features and borrower characteristics of each type of student loan may vary, the three major types of student loans currently outstanding, as described below, are generally serviced by the same market participants.
The three main types of post-secondary education loans under which borrowers have outstanding balances are loans made under the Federal Family Education Loan program (FFELP), loans made under the William D. Ford Federal Direct Loan (Direct Loan) program, and private student loans. Direct Loans and private student loans are still available for new originations.
The vast majority of student loan servicing activity is now concentrated among large student loan servicers that service all three types of student loans.
More than 40 million Americans with student loan debt depend on student loan servicers as their primary point of contact for their student loans. A servicer is often different than the lender or loan holder, and borrowers almost always lack control or choice over which company services their loan. Student loan servicers' duties typically include managing borrowers' accounts, processing monthly payments, and communicating directly with borrowers.
When problems arise because of servicing problems, student loan borrowers may face a range of different consequences. They may miss a payment, owe more money because of additional interest on principal, or face future difficulties with credit because of a poor payment history.
For the majority of student loan borrowers who make payments on time each month and never contact their servicer for additional assistance, loan servicing generally may be limited to accepting and applying monthly payments and awarding benefits earned by satisfying specific loan terms (
Student loan borrowers facing unemployment or other financial hardship need adequate loan servicing for a different reason. Student loan servicers assist these borrowers with enrolling in alternative repayment plans, obtaining deferments or forbearances, or requesting a modification of loan terms. For these borrowers, proper loan servicing may be the key to successfully avoid default and ultimately perform on the loan. When borrowers face difficulties, loan servicers can help borrowers avoid default, minimize damage to borrowers' credit, and ensure that borrowers can find sustainable solutions that keep them on a long-term path to future financial success. In addition, adequate loan servicing also helps to ensure that owners of the loans are repaid.
The Bureau estimates that there are nearly 8 million student loan borrowers in default, representing over $110 billion in balances.
While federal student loans feature an array of flexible repayment options, it is not clear whether third-party student loan servicers, particularly those servicing Federal Family Education Loans, have adequate economic incentive to enroll borrowers in these options to avoid default. For both private and federal student loans, the compensation model used in most third-party servicing contracts provides student loan servicers with a flat monthly fee per account serviced.
In recent years, policymakers have undertaken broad-based legislative and regulatory efforts to strengthen applicable federal consumer financial laws protecting consumers in the servicing of mortgages and credit cards. For student loan borrowers, there is no existing, comprehensive federal statutory or regulatory framework providing uniform standards for the servicing of all student loans.
There may be variation in the level of service delivered by student loan
Title IV of HEA authorizes the federal student loan programs and establishes a framework for conduct by and oversight of companies participating in FFELP, including student loan servicers contracted by holders of FFELP loans to service these loans. This framework establishes a number of conditions that loan holders and service providers must meet in order for federal loan guarantees to remain in effect, including arranging for periodic independent financial audits and complying with program requirements established in implementing regulations.
Congress has amended Title IV of HEA periodically since its enactment, creating a set of flexible repayment plans, loan cancellation options, and other protections for borrowers with federal student loans.
In 2008, Congress enacted HEOA, reauthorizing HEA and amending Title IV to provide additional protections for borrowers with loans made through FFELP. Implementing regulations require student loan servicers to provide certain notices to borrowers with FFELP loans during the course of repayment, including notices related to account terms, repayment plans, and servicing transfers.
HEOA also amended TILA to create new protections for borrowers with private education loans, largely related to the origination of these loans.
FCRA and its implementing regulation, Regulation V, require entities that furnish information to consumer reporting agencies to have reasonable policies and procedures regarding the accuracy and integrity of information they furnish.
In July 2011, the Bureau launched an examination program to supervise education lending and servicing at the largest depository institutions.
In October 2011, the Secretary of the Treasury designated a student loan ombudsman within the Bureau, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The Bureau's student loan ombudsman is required to submit certain reports to the Director of the Bureau, the Secretary of the Treasury, and the Secretary of Education related to student loan complaints.
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Borrowers have submitted complaints detailing how they face loan acceleration, including consequences such as credit damage and frequent debt collection calls, even if the loan was in good standing prior to and while the co-signer is in bankruptcy, or upon a co-signer's death. Acceleration may be triggered when data from probate and other court record scans are matched with a company's customer database, without regard to whether the borrower is in good standing.
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As noted in these reports, consumer complaints are not necessarily representative of typical experiences of student loan borrowers. However, examination and investigative activities have revealed that problems may not be limited to individual consumers filing complaints. For example, in 2014, the Federal Deposit Insurance Corporation (FDIC) addressed alleged misconduct with one large student loan servicer for illegal practices regarding student loan payment processing.
• Inadequately disclosing its payment allocation methodologies to borrowers while allocating borrowers' underpayments across multiple loans in a manner that maximizes late fees; and
• Misrepresenting and inadequately disclosing in its billing statements how borrowers could avoid late fees.
In addition, the Department of Justice joined with the FDIC to enter an order providing $60 million in restitution for more than 60,000 servicemembers in an action against the same company, related to its awarding of benefits under the SCRA to active duty members of the military.
• Unfairly conditioning receipt of benefits under the SCRA upon requirements not found in the law;
• Improperly advising servicemembers that they must be deployed in order to receive benefits under the SCRA; and
• Failing to provide complete SCRA relief to servicemembers after having been put on notice of these borrowers' active duty status.
While supervising for compliance with federal consumer financial laws,
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On March 10, 2015, the President signed a Presidential Memorandum titled the “Student Aid Bill of Rights.”
The Bureau has observed similarities between the servicing problems encountered by student loan borrowers and those experienced by borrowers with other financial products. Loan servicing generally includes many common functions, irrespective of the underlying consumer financial product, including account maintenance, billing and payment processing, customer service, and managing accounts for customers experiencing financial distress.
During and in the wake of the financial crisis, Congress, state policymakers, law enforcement officials, and federal financial regulators sought to address a broad range of loan servicing problems in the credit card and mortgage markets. Several large mortgage servicers reached settlements with State and Federal regulators to address a range of troubling practices.
Congress has passed several significant legislative and regulatory interventions to protect mortgage borrowers from illegal and deceptive mortgage servicing practices. In 1968 and 1974, Congress passed TILA and the Real Estate Settlement Procedures Act of 1974 (RESPA), respectively. Taken together, these statutes provide additional disclosure requirements and regulate certain acts associated with consumer risk and harm.
In 2010, Congress again intervened by providing additional protections through the Dodd-Frank Act. The Dodd-Frank Act gave the Bureau authority to promulgate regulations to implement new mortgage servicing protections following the wake of the financial crisis and granted the Bureau with rule-making, supervision, and enforcement
• Notice of transfer of loan servicing. If a lender or servicer transfers a loan's servicing to a new servicer, the prior servicer must provide a notice to the borrower no less than 15 days before the effective date of transfer, and the transferee servicer must provide a notice not more than 15 days after the effective date of transfer, with limited exceptions.
• Timely transfer of documents to new servicer. Mortgage servicers are required to maintain policies and procedures reasonably designed to facilitate the transfer of information during servicing transfers.
• Payoff statements. A servicer must provide a payoff statement, specifying the amount needed to pay the loan in full as of a particular date, within seven business days after receiving the consumer's written request.
• Error resolution procedures. Generally, mortgage servicers must respond to written notices from consumers asserting a servicing error, such as charges for late fees that the servicer lacks a reasonable basis to impose.
• Continuity of contact. Mortgage servicers must maintain policies and procedures designed to assign designated personnel to respond to the consumer's inquiries, and, as applicable, assist the consumer with available loss mitigation options.
• Record retention. Mortgage servicers are required to retain certain records that document actions taken regarding the mortgage loan account until one year after the date the loan is discharged or servicing is transferred.
• Early intervention for delinquent borrowers. Mortgage servicers must make a good faith effort to establish live contact with a borrower no later than the 36th day of a borrower's delinquency.
In 2009, Congress enacted the Credit Card Accountability, Responsibility, and Disclosure Act (CARD Act), establishing new protections for consumers with credit cards.
• Timely posting of payments. Credit card companies must credit all payments received by 5 p.m. on the day they are received.
• Periodic billing statements. Credit card companies must have reasonable procedures designed to ensure that billing statements are mailed or delivered at least 21 days before a payment is due.
• Application of Payments. Credit card companies, upon receipt of a payment in excess of the minimum payment amount due, must first apply the excess to the card balance bearing the highest interest rate, and then to each successive balance bearing the next highest rate of interest, until the payment is exhausted.
The Bureau is interested in responses in the following general areas, as well as the specific questions below. Part A of this Request for Information (RFI) provides a general overview of the problems experienced by consumers when repaying student debt.
In the following section, we offer commenters a series of questions to consider when responding to this RFI.
The following section seeks to solicit input on common practices, policies, and procedures in the student loan servicing market. Respondents may wish to address any structural features of the student loan servicing market as they relate to specific practices, including but not limited to:
• The traditional compensation model for third-party student loan servicing, including compensation related to default aversion and alternative repayment options;
• Information systems used by student loan servicers, including information systems used to process alternative repayment options, servicing transfers, and furnishing of credit information; or
• Existing federal and state statutory or regulatory protections for student loan borrowers in repayment.
Respondents may also wish to highlight effective or innovative approaches to delivering service, including:
• Practices by incumbents or new entrants in the student loan servicing market;
• Practices by loan servicers in other markets, including but not limited to servicing practices for credit cards and mortgages; or
• Alternative business models to traditional loan servicing that could reduce costs, increase recoveries, or enhance transparency for borrowers.
(1) Please describe the extent to which issues related to the following common student loan servicing policies and procedures should inform policymakers and market participants considering options to improve the quality of student loan servicing, including but not limited to:
a. Processing, allocation, and application of payments (including partial payments and prepayments);
b. The imposition and disclosure of late fees, including the impact of late fees across billing groups;
c. Transfer of loans between lenders, loan holders, and student loan servicers;
d. The complaint resolution process (including the consumers' ability to adequately request and receive accurate and timely responses for information and corrections related to their account);
e. Furnishing of credit information to credit reporting agencies (including the appropriateness, adequacy, and accuracy of the information furnished);
f. The impact of a single late payment on borrowers' future abilities to avail themselves of repayment benefits, such as interest rate reductions for enrolling in auto-debit;
g. Disclosure, accessibility, and availability of refinance products;
h. Disclosure, accessibility, and availability of options to release a co-signer from their legal obligation to repay a co-signed student loan; or
i. Disclosure, accessibility, and availability of options to discharge or reduce student loan debt in the event of the death or disability of a borrower or co-signer.
(2) Please describe the extent to which issues related to the following common student loan servicing policies and procedures should inform policymakers and market participants considering options to improve the quality of student loan servicing for borrowers in distress, including but not limited to:
a. Procedures servicers utilize to ensure that borrowers can avail themselves of alternative repayment options;
b. The circumstances in which a fee occurs or should be permissible, and the manner of disclosure of servicing-related fees, including those imposed for modifications or cessation of payment (
c. The offering and disclosure of variable rate private loans that increase the interest rate based on borrower behavior, including missed payments;
d. Policies and procedures related to acceleration of debts (including the availability and disclosures of co-signer release policies);
e. Disclosure, accessibility, and availability of affordable modification options; or
f. The adequacy and clarity of communication regarding certain borrower rights to discharge debt (
(3) Please identify any unique issues that are specific to certain segments of the student loan borrower population related to the common student loan servicing practices, operations, policies, and procedures described above. Responses should consider borrower segments with unique characteristics, including but not limited to servicemembers, veterans, and their families; first-generation college attendees; current or former attendees of Historically Black Colleges and Universities (HBCU) or Minority-Servicing Institutions (MSI); and older Americans.
Respondents may wish to evaluate existing loan servicing protections for consumers in other markets, including protections for consumers with mortgages and credit cards. The following questions seek to solicit feedback on any conduct requirements required by statute, regulation, consent decree or other means that should inform policymakers and market participants when considering options to improve the quality of student loan servicing. Respondents may wish to consider aspects of loan servicing in these markets that are common across products and may also wish to note differences between types of loan servicing that may make the delivery of service unique to a particular market. Responses need not address all questions in this section and need not be limited to the specific provisions identified below.
(4) Describe any mortgage servicing standards or other provisions under RESPA, TILA or the Home Ownership and Equity Protection Act (HOEPA) that should inform policymakers and market participants considering options to improve the quality of student loan servicing. Responses need not be limited to requirements related to:
a. Payment handling. Specific conduct requirements for mortgage servicers related to payment handling, including payoff requests or prompt crediting of payments, and to periodic statements, including the timing of periodic statements or specific periodic
b. Servicing transfers. Specific conduct requirements for mortgage servicers in the event of a servicing transfer, including requirements related to the timing of notices in the event of a transfer of servicing, record retention requirements for the transferor servicer, or prohibitions against certain late fees and treating certain payments as late for a fixed period following the transfer of servicing.
c. Error resolution. Specific conduct requirements for mortgage servicers related to error resolution and requests for information, including notices required upon receipt of a written notice of error or request for information, requirements related to investigations and error resolution, requirements related to the production of requested information, and notices required if requested information is not available.
d. Interest rate adjustment notifications. Specific conduct requirements for mortgage servicers related to interest rate adjustment notifications, including notice of interest rate adjustment prior to the first payment at a new rate and notice of rate adjustment prior to the first payment due after the rate adjusts, if payment will change.
e. Loan counseling. Specific conduct requirements for creditors related to homeownership counseling, including the timely provision of information about homeownership counseling organizations or requirements related to the confirmation of consumer's completion of homeownership counseling prior to making a loan that permits negative amortization to a first-time borrower.
(5) Describe any mortgage servicing standards or other provisions under RESPA, TILA, or HOEPA that should inform policymakers and market participants considering options to improve the quality of student loan servicing for distressed borrowers. Responses need not be limited to specific conduct related to:
a. Live contact. Specific conduct requirements for mortgage servicers related to outreach to delinquent borrowers, including the requirement for mortgage servicers to establish or make good faith efforts to establish live contact with borrower early in borrowers' delinquency.
b. Loss mitigation information. Specific conduct requirements for mortgage servicers related to the disclosure of loss mitigation options, including the requirement for mortgage servicers to maintain policies and procedures reasonably designed to ensure that servicer personnel assigned to a delinquent borrower provide the borrower with accurate information about loss mitigation options and actions the borrower must take to be evaluated for such loss mitigation options.
c. Timing requirements for foreclosure filings. Specific conduct requirements for mortgage servicers related to timing for foreclosure filings, including the specific prohibition on mortgage servicers from making the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process until after a borrower becomes delinquent for a certain period of time. Respondents may wish to contrast these requirements with conduct requirements in place related to servicing student loans in late-stage delinquency.
d. Assignment of continuity of contact personnel. Specific conduct requirements for mortgage servicers related to ensuring borrowers can access customer service personnel, including the requirement for mortgage servicers to maintain policies and procedures reasonably designed to achieve the objective of assigning continuity of contact personnel (which can be one or a team of personnel) to a delinquent borrower who will be available via telephone, and will provide a live response to a borrower immediately or in a timely manner.
e. Conduct by continuity of contact personnel. Specific conduct requirements for mortgage servicers related to customer service provided by continuity of conduct personnel, including the requirement for mortgage servicers to have reasonable policies and procedures reasonably designed to ensure that assigned continuity of contact personnel retrieve in a timely manner written information the borrower provided to the servicer (or prior servicers) in connection with a loss mitigation application and provide such information to other persons required to evaluate a borrower for loss mitigation options made available by the servicer, if applicable.
f. Prohibition on recommending default. Specific conduct requirements for creditors related to conditions under which a creditor can recommend refinancing of a high-cost mortgage, including a prohibition on recommending default on an existing loan.
g. Prohibition on certain fees. Specific conduct requirements for creditors related to fees charged to borrowers, including the requirement that creditors, servicers and assignees cannot charge a fee to modify, defer, renew, extend, or amend a high-cost mortgage, the restriction of late fees to four percent of the past due payment and rules for imposing late fees when a consumer resumes making payments after missing one or more payments, or the limitation on the imposition of fees for payoff.
(6) Describe any protections afforded to consumers with credit cards, including but not limited to protections under the Credit CARD Act of 2009 (15 U.S.C. 1637), to inform policymakers and market participants considering options to improve the quality of student loan servicing. Responses should consider, but should not be limited to:
a. Notice of rate increases and significant changes. Specific conduct requirements for card issuers related to written notice of an increase in an annual percentage rate or any other significant change, including the requirement that such notice be sent 45 days prior to the effective date of the rate increase or change.
b. Notice of certain penalties for late payments. Specific conduct requirements for card issuers related to written notices required in response to borrowers' failure to make a minimum payment within 60 days of the due date, including the notice requirement triggered when a card issuer increases the APR or fees.
c. Timing of periodic statements. Specific conduct requirements for card issuers related to the timing of periodic statements, including the requirement that a creditor may not treat a payment on an open-end consumer credit plan as late for any purpose, unless the creditor has adopted reasonable procedures designed to ensure that each periodic statement is mailed or delivered to the consumer no later than 21 days before the payment due date.
d. Posting of payments. Specific conduct requirements for card issuers related to the posting of payments, including the requirement that credit card companies credit or treat as on time all payments received by 5 p.m. on the day they are received.
e. Fees for processing payments. Specific conduct requirements for card issuers related to fees for processing payments, including the requirement that a creditor may not impose a separate fee to allow the borrower to repay an extension of credit or finance charge, such as a fee for processing a payment, unless such payment involves
f. Application of payments. Specific conduct requirements for card issuers related to the application of payments, including the requirement that credit card companies upon receipt of a payment in excess of the minimum payment amount due, must first apply the excess to the card balance bearing the highest interest rate, and then to each successive balance bearing the next highest rate of interest, until the payment is exhausted.
g. Limitations on changes to fees, charges and annual percentage rates. Specific conduct requirements for card issuers related to certain changes to terms, including the requirement that a card issuer may not elect to increase the annual percentage rate or assess fees or other charges, with some exceptions.
h. Disclosures related to payments and interest charges. Specific conduct requirements for card issuers related to disclosures about payment application and interest charges, including the requirement that credit card issuer provide disclosures on consumers' periodic statements warning them that if they make only minimum payments on their accounts, they will pay more in interest, and it will take longer to pay off their account balance.
i. Online publication of certain documents. Specific conduct requirements for card issuers related to the publication of certain documents online, including the requirement for a creditor to establish and maintain an Internet site and post the written agreement between the creditor and the consumer for each credit card account under an open-end consumer credit plan and that the creditor provide in electronic format the credit card agreement on the creditor's Web site.
(7) To what extent should the specific conduct requirements included in settlements between financing services providers and state law enforcement agencies inform policymakers and market participants considering options to improve the quality of student loan servicing? Respondents may wish to address, but need not be limited to, specific requirements contained in the National Mortgage Settlement (NMS), including protections related to members of the military and their families.
(8) Describe any other standards of conduct required by statute, regulation, consent decree or other means that should inform policymakers and market participants when considering options to improve the quality of student loan servicing, including but not limited to, provisions related to:
a. Payment handling and allocations;
b. Periodic statement requirements;
c. Disclosures required on periodic statements;
d. Servicing transfers;
e. Dispute resolution procedures;
f. Request for information;
g. Interest rate adjustment notifications;
h. The imposition of fees;
i. Imposition of interest rate penalties in response to changes in customer behavior;
j. The availability and accessibility of affordable repayment options; or
k. The ability for a lender to place a borrower or co-signer in default based on consumer behavior other than missed payments.
(9) Describe the extent to which the existing statutory or regulatory protections afforded to consumers under the following laws should inform policymakers and market participants considering options to improve the quality of student loan servicing:
a. Truth in Lending Act;
b. Real Estate Settlement Procedures Act;
c. Fair Credit Reporting Act;
d. Fair Debt Collection Practices Act;
e. Electronic Funds Transfer Act;
f. Higher Education Act; or
g. Federal Trade Commission Act.
The following section seeks to solicit input about the availability of data on student loan performance and on borrower characteristics during repayment. Respondents should consider existing data sources and gaps in availability that should inform policymakers and market participants considering options to improve the quality of student loan servicing.
(10) To what extent do available data and reports about student loan repayment reveal usage and specific risks to student loan borrowers, including those related to:
a. Loan performance, delinquency, and default;
b. Utilization of income-driven payment plans and other alternative repayment options; or
c. Utilization of repayment options that result in temporary cessation of payment, including deferment and forbearance.
(11) To what extent do gaps in available data create problems for policymakers or other stakeholders seeking to evaluate consumer risks as it relates to student loan servicing?
(12) To what extent are publicly available data sets in other consumer financial markets (
12 U.S.C. 5511(c).
Office of the Secretary of Defense, DoD.
Notice to alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records, DWHS E02, entitled “Freedom of Information Act Case Files” in its inventory of record systems subject to the Privacy Act of 1974, as amended. Information is being collected and maintained in this system for the purpose of processing FOIA requests and administrative appeals; for participating in litigation regarding agency action on such requests and appeals; and for assisting the DoD in carrying out any other responsibilities under FOIA.
Comments will be accepted on or before June 22, 2015. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Freedom of Information Act Case Files (January 28, 2013, 78 FR 5783).
Delete entry and replace with “Freedom of Information Act (FOIA) Case Files.”
Delete entry and replace with “Washington Headquarters Services (WHS) records: Freedom of Information Division, Executive Services Directorate, Washington Headquarters Services, 4800 Mark Center Drive, Alexandria, VA 22350-3100.
DoD Education Activity (DoDEA) records: Department of Defense Education Activity, Freedom of Information Act Requester Service Center, Executive Services Office, 4800 Mark Center Drive, Alexandria, VA 22350-1400.”
Delete entry and replace with “Individuals who have requested documents under the provisions of the FOIA from the Office of the Secretary of Defense/Joint Staff (OSD/JS), and the DoDEA, FOIA Requester Service Centers; individuals whose requests and/or records have been processed under the FOIA and referred by other Federal agencies; and attorneys representing individuals submitting such requests.”
Delete entry and replace with “Records created or compiled in response to FOIA requests and administrative appeals,
Delete entry and replace with “5 U.S.C. 552, Freedom of Information Act; 10 U.S.C. 113, Secretary of Defense; DoD Directive 5400.07, DoD Freedom of Information Act (FOIA) Program; DoD Regulation 5400.7-R, DoD Freedom of Information Act Program; and Administrative Instruction 108, Office of the Secretary of Defense and Joint Staff (JS) Freedom of information Act (FOIA) Program.”
Delete entry and replace with “Information is being collected and maintained for the purpose of processing FOIA requests and administrative appeals; for participating in litigation regarding agency action on such requests and appeals; and for assisting the DoD in carrying out any other responsibilities under the FOIA.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. 552(h), to review administrative agency policies, procedures and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS' offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.
Law Enforcement Routine Use: If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
Disclosure to the Department of Justice for Litigation Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the DoD, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
Disclosure of Information to the National Archives and Records Administration Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
Data Breach Remediation Purposes Routine Use: A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or
The DoD Blanket Routine Uses set forth at the beginning of the OSD compilation of systems of records notices may apply to this system. The complete list of DoD blanket routine uses can be found online at:
Delete entry and replace with “Retrieved by name of requester, subject matter, date of request, and FOIA request case number.”
Delete entry and replace with “WHS records: Chief, Freedom of Information Division, Executive Services Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
DoDEA records: Chief, Department of Defense Education Activity, Freedom of Information Act Requester Service Center, Executive Services Office, 4800 Mark Center Drive, Alexandria, VA 22350-1400.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to:
WHS records: Chief, Freedom of Information Division, Executive Services Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
DoDEA records: Chief, Department of Defense Education Activity, Freedom of Information Act Requester Service Center, Executive Services Office, 4800 Mark Center Drive, Alexandria, VA 22350-1400.
Signed written requests should include the requester's name, mailing address, and name and number of this system of records notice.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address written inquiries to:
WHS records: Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, Office of Freedom of Information, Washington Headquarters, 1155 Defense Pentagon, Washington, DC 20301-1155.
DoDEA records: Department of Defense Education Activity, Freedom of Information Act Requester Service Center, Executive Services Office, 4800 Mark Center Drive, Alexandria, VA 22350-1400.
For DoDEA records, a non-custodial parent or legal guardian requesting records pertaining to his or her minor child or ward must also provide evidence of that relationship. For example, such parent or legal guardian may provide a copy of a divorce decree or a child custody or guardianship order that includes the child's name.
Requests for information should be in writing, signed, and provide evidence of the requester's identity, such as a copy of a photo ID or passport or similar document bearing the requesters signature. Requests must contain the requesters name, mailing address, FOIA case number, name and number of this system of records notice and be signed.”
Delete entry and replace with “The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.”
Delete entry and replace with “Individuals who submit initial requests and administrative appeals pursuant to the FOIA; the agency records searched in the process of responding to such requests and appeals; DoD personnel assigned to handle such requests and appeals; other agencies or entities that have referred to the DoD requests concerning DoD records or that have consulted with the DoD regarding the handling of particular requests; submitters of records; and information from those that have provided assistance to the DoD in making FOIA access determinations.”
Delete entry and replace with “During the course of a FOIA action, exempt materials from other systems of records may, in turn, become part of the case records in this system. To the extent that copies of exempt records from those other systems of records are entered into this FOIA case record, WHS, and the DoDEA, hereby claim the same exemptions for the records from those other systems that are entered into this system, as claimed for the original primary systems of records which they are a part.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c), and (e) and published in 32 CFR part 311. For additional information contact the system manager.”
Defense Logistics Agency, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by July 20, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Christopher Hall, Office of Small Business Programs, Program Manager, Procurement Technical Assistance Program, Defense Logistics Agency (email:
Each cooperative agreement award recipient submitted goals and objectives in their application that were subsequently incorporated into their cooperative agreement awards. The level of achievement of these goals and the funds expended in the process of conducting the program is measured by the report. The government's continued funding of a cooperative agreement and the decision to exercise an option award for a cooperative agreement award is based to a significant degree on the award holder's current performance as measured by the report. Information from the report is also used to identify programs that may be in need of assistance and/or increased surveillance.
Office of the Secretary of Defense, DoD.
Notice to alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records, DCIO 01, entitled “Defense Industrial Base (DIB) Cyber Security/Information Assurance Records” to facilitate the sharing of DIB cybersecurity threat information and best practices to DIB companies to enhance and supplement DIB participant capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems. When incident reports are received, DoD Cyber Crime Center (DC3) personnel analyze the information reported for cyber threats and vulnerabilities in order to develop response measures as well as improve U.S. Government and DIB understanding of advanced cyber threat activity. DoD may work with a DIB company on a more detailed, digital forensics analysis or damage assessment, which may include sharing of additional electronic media/files or information regarding the incident or the affected systems, networks, or information.
Comments will be accepted on or before June 22, 2015. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
Follow the instructions for submitting comments.
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on May 15, 2015, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Industrial Base (DIB) Cyber Security/Information Assurance Records (May 18, 2012, 77 FR 29616).
Delete entry and replace with “Defense Industrial Base (DIB) Cybersecurity (CS) Activities Records.”
Delete entry and replace with “Defense Industrial Base (DIB) Cybersecurity Program, 6000 Defense Pentagon, ATTN: DIB CS Program, Washington, DC 20301-6000.
DoD Cyber Crime Center, 911 Elkridge Landing Road, Linthicum, MD 21090-2991.”
Delete entry and replace with “DIB company point of contact information includes name, company name and mailing address, work division/group, work email, and work telephone number.”
Delete entry and replace with “10 U.S.C. 2224, Defense Information Assurance Program; 44 U.S.C. 3544, Federal Agency Responsibilities; Public Law 113-58, National Defense Authorization Act for Fiscal Year 2015, Section 1632, Reporting on Cyber Incidents with Respect to Networks and Information Systems of Operationally Critical Contractors (10 U.S.C. Chapter 19, Cyber Matters); Presidential Policy Directive PPD-21, Critical Infrastructure, Security and Resilience; DoD Directive (DoDD) 3020.40, DoD Policy and Responsibilities for Critical Infrastructure; DoDD 5505.13E, DoD Executive Agent (EA) for the DoD Cyber Crime Center (DC3); DoD Manual 3020.45, Defense Critical Infrastructure Program (DCIP): DoD Mission-Based Critical Asset Identification Process (CAIP); and DoD Instruction 5205.13, Defense Industrial Base (DIB) Cyber Security/Information Assurance (CS/IA) Activities.”
Delete entry and replace with “To facilitate the sharing of DIB cybersecurity threat information and best practices to DIB companies to enhance and supplement DIB participant capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems. When incident reports are received, DoD Cyber Crime Center (DC3) personnel analyze the information reported for cyber threats and vulnerabilities in order to develop response measures as well as improve U.S. Government and DIB understanding of advanced cyber threat activity. DoD may work with a DIB company on a more detailed, digital forensics analysis or damage assessment, which may include sharing of additional electronic media/files or information regarding the incident or the affected systems, networks, or information.”
Delete entry and replace with “In addition to the disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
DIB company point of contact information may be provided to other participating DIB companies to facilitate the sharing of information and expertise related to the DIB CS Program including cyber threat information and best practices, and mitigation strategies.
Law Enforcement Routine Use: If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
Counterintelligence Purpose Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use outside the DoD or the U.S. Government for the purpose of counterintelligence activities authorized by U.S. Law or Executive Order or for the purpose of enforcing laws which protect the national security of the United States.
Disclosure of Information to the National Archives and Records Administration Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
The DoD Blanket Routine Uses set forth at the beginning of the Office of the Secretary of Defense/Joint Staff compilation of systems of records notices may apply to this system. The complete list of the DoD blanket routine uses can be found online at:
Any release of information contained in this system of records outside the DoD will be compatible with the purpose(s) for which the information is collected and maintained.”
Delete entry and replace with “DIB Company POC information is retrieved primarily by company name and work division/group and secondarily by individual POC name.
DIB cyber incident reports are primarily retrieved by incident number but may also be retrieved by company name. They are not retrieved by the individual name.”
Delete entry and replace with “Records are accessed by personnel with security clearances who are properly screened, trained, under a signed confidentiality agreement, and determined to have `need to know'. Access to records requires DoD Common Access Card (CAC) and PIN. Physical access controls include security guards, identification badges, key cards, cipher locks, and combination locks.”
Delete entry and replace with “Director, DIB Cybersecurity, 6000 Defense Pentagon, ATTN: DIB CS Program, Washington, DC 20301-6000.”
Delete entry and replace with “Individuals seeking to determine whether this system of records contains information on themselves should address written inquiries to Director, DIB Cybersecurity Office, 6000 Defense Pentagon, ATTN: DIB CS Program, Washington, DC 20301-6000.
Signed, written requests should contain the individual's name, and company name and work division/group.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address a written request to the Office of the Secretary of Defense/Joint Staff (OSD/JS), Freedom of Information Act (FOIA) Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Signed, written requests should contain the individual's name, company name and work division/group, and the name and number of this system of records notice.”
Delete entry and replace with “The individual and participating DIB companies.”
Defense Nuclear Facilities Safety Board.
Notice of public meeting.
Pursuant to the provisions of the Government in the Sunshine Act, 5 U.S.C. 552b, notice is hereby given of the Defense Nuclear Facilities Safety Board's (Board) public business meeting described below. The Board invites any interested persons or groups to present any comments, technical information, or data concerning issues related to the matters to be considered.
9:00 a.m.-3:00 p.m., June 3, 2015.
Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Room 352, Washington, DC 20004.
Open. The Board has determined that an open meeting furthers the public interest underlying the Board's mission and the Government in the Sunshine Act.
The meeting will proceed in accordance with the meeting agenda, which is posted on the Board's public Web site at
Mark Welch, General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004-2901, (800) 788-4016. This is a toll-free number.
Public participation in the meeting is invited from 11:45 a.m. to 12:30 p.m. Requests to speak may be submitted in writing or by telephone. The Board asks that commenters describe the nature and scope of their oral presentations. Those who contact the Board prior to close of business on June 2, 2015, will be scheduled to speak. At the beginning of the meeting, the Board will post a schedule for speakers at the entrance to the meeting room. Anyone who wishes to comment or provide technical information or data may do so in writing, either in lieu of, or in addition to, making an oral presentation. Documents will be accepted at the meeting. The meeting record will close when the meeting is adjourned at 3:00 p.m. The meeting will be presented live through Internet video streaming. A link to the meeting will be available on the Board's Web site (
Institute of Education Sciences, U.S. Department of Education.
Announcement of an open meeting.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the National Board for Education Sciences (NBES). The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of their opportunity to attend the meeting.
The NBES meeting will be held on June 8, 2015, from 9:00 a.m. to 4:15 p.m. Eastern Standard Time.
80 F Street NW., Large Board Room, Washington, DC 20001.
Ellie Pelaez, Designated Federal Official, NBES, U.S. Department of Education, 555 New Jersey Avenue NW., Room 600 E, Washington, DC 20208; phone: (202) 219-0644; fax: (202) 219-1402; email:
The National Board for Education Sciences is authorized by Section 116 of the Education Sciences Reform Act of 2002 (ESRA),
On June 8, 2015, starting at 9:00 a.m., the Board meeting will commence and members will approve the agenda. From 9:05 a.m. to 10:00 a.m., the Board will hear presentations from the Commissioners of the IES Centers for Education Research, Special Education Research, Education Evaluation and Regional Assistance, and Education Statistics. This session will be followed by a question and answer period regarding the Commissioners' reports. A break will take place from 10:00 a.m. to 10:15 a.m.
The Board meeting will resume from 10:15 a.m. to 12:00 p.m. when the Board will discuss “Improving Education: The Research Road Ahead.” Susanna Loeb, Vice Chairperson of NBES, will provide opening remarks followed by a panel discussion with Anthony Bryk, NBES member and President, Carnegie Foundation for the Advancement of Teaching; Tom Kane, Walter H. Gale Professor of Education and Economics, Harvard University; and James Kemple, The Research Alliance for New York City Schools. Roundtable discussion by board members will take place after the panel discussion. The meeting will
From 1:00 p.m. to 2:45 p.m., the board will participate in a discussion on the Regional Educational Laboratories (RELs). Ruth Neild, Commissioner, National Center on Educational Evaluation and Regional Assistance, will provide opening remarks, followed by a panel discussion with Barbara Foorman, Francis Eppes Professor of Education and Director of the REL Southeast, Florida State University; Nikola Filby, Director of the REL West, WestEd; and Neal Finkelstein, Associate Director of the REL West, WestEd. Roundtable discussion by board members will take place after the panel discussion. A break will take place from 2:45 p.m. to 3:00 p.m.
The meeting will resume at 3:00 p.m. to 4:00 p.m. when the Board will discuss the “Nexus between Student Drug Use and Students Achievement.” Thomas Brock, Commissioner, National Center for Education Research, will provide opening remarks, followed by a panel discussion.
Closing remarks will take place from 4:00 p.m. to 4:15 p.m., with adjournment scheduled for 4:15 p.m.
There will not be an opportunity for public comment. However, members of the public are encouraged to submit written comments related to NBES to Ellie Pelaez (see contact information above). A final agenda is available from Ellie Pelaez (see contact information above) and is posted on the Board Web site
The Department will post the official report of the meeting on the NBES Web site no later than 90 days after the meeting. Pursuant to the FACA, the public may also inspect the materials at 555 New Jersey Avenue NW., 6th Floor, Washington, DC, by emailing
The meeting site is accessible to individuals with disabilities. If you will need an auxiliary aid or service to participate in the meeting (
The official version of this document is the document published in the
You may also access documents of the Department published in the
Section 116 of the Education Sciences Reform Act of 2002 (ESRA),
National Advisory Council on Indian Education (NACIE or Council), U.S. Department of Education.
Announcement of an Open Public Meeting.
This notice sets forth the schedule of an upcoming public meeting conducted by the National Advisory Council on Indian Education (NACIE). Notice of the meeting is required by section 10(a)(2) of the Federal Advisory Committee Act and intended to notify the public of its opportunity to attend.
The NACIE meeting will be held on June 1-2, 2015; June 1, 2015—9:00 a.m.-5:00 p.m. Eastern Daylight Saving Time, June 2, 2015—9:00 a.m.-1:00 p.m. Eastern Daylight Saving Time.
The meeting location is in Washington, DC.
U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Ave. SW., Washington, DC 20202.
Tina Hunter, Designated Federal Official, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue SW., Washington, DC 20202. Telephone: 202-205-8527. Fax: 202-205-0310.
NACIE's Statutory Authority and Function: The National Advisory Council on Indian Education is authorized by § 7141 of the Elementary and Secondary Education Act. The Council is established within the Department of Education to advise the Secretary of Education on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction and includes Indian children or adults as participants or programs that may benefit Indian children or adults, including any program established under Title VII, Part A of the Elementary and Secondary Education Act. The Council submits to the Congress, not later than June 30 of each year, a report on the activities of the Council that includes recommendations the Council considers appropriate for the improvement of Federal education programs that include Indian children or adults as participants or that may benefit Indian children or adults, and recommendations concerning the funding of any such program.
One of the Council's responsibilities is to develop and provide recommendations to the Secretary of Education on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction that can benefit Indian children or adults participating in any program which could benefit Indian children.
All attendees must RSVP for the meeting and sign up to provide a public comment no later than May 29, 2015. Speakers will be allowed to provide comments for no more than five (5) minutes. Members of the public interested in submitting written comments may do so via email at
You may also access documents of the Department published in the
The National Advisory Council on Indian Education is authorized by Section 7141 of the Elementary and Secondary Education Act.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Description: Compliance filing per 35: Tariff Amendment to be effective 4/7/2015.
Description: § 205(d) rate filing per 35.13(a)(2)(iii): Seller Category and Miscellaneous Tariff Revisions to be effective 5/16/2015.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
EPA is announcing its receipt of test data submitted pursuant to a test rule issued by EPA under the Toxic Substances Control Act (TSCA). As required by TSCA, this document identifies each chemical substance and/or mixture for which test data have been received; the uses or intended uses of such chemical substance and/or mixture; and describes the nature of the test data received. Each chemical substance and/or mixture related to this announcement is identified in Unit I. under
Information about the following chemical substances and/or mixtures is provided in Unit IV.:
Section 4(d) of TSCA (15 U.S.C. 2603(d)) requires EPA to publish a notice in the
A docket, identified by the docket identification (ID) number EPA-HQ-OPPT-2013-0677, has been established for this
The docket for this
This unit contains the information required by TSCA section 4(d) for the test data received by EPA.
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15 U.S.C. 2601
The companies listed in this notice have given notice under the Home Owners' Loan Act (HOLA) (12 U.S.C. 1461
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 10(c)(4)(B) of HOLA (12 U.S.C. 1467a(c)(4)(B)).
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 5, 2015.
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 15, 2015.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
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The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 5, 2015.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
Children's Bureau, Administration on Children, Youth and Families, ACF, HHS.
Notice of the award of a single-source cooperative agreement to the American Public Human Services Association on behalf of its' affiliate, the Association of Administrators of the Interstate Compact On the Placement of Children to scale the successful pilot National Electronic Interstate Compact Enterprise (NEICE) system to a national level.
The Administration for Children and Families (ACF), Administration on Children, Youth and Families (ACYF), Children's Bureau (CB) announces the award of a single-source cooperative agreement in the amount of $1,200,000 for each of 3 years to the American Public Human Services Association for its affiliate the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC), Washington, DC, for the national expansion of the NEICE to improve the administrative efficiency in the interstate process of the ICPC nationally. The ICPC establishes uniform legal and administrative procedures governing the interstate placement of children for the purposes of foster care, adoption and residential placement in all 52 member jurisdictions of the ICPC.
Award funds will support the development of the NEICE beyond the original six pilot sites to include all 50 states, the District of Columbia and the U.S. Virgin Islands. The NEICE system was previously developed as a pilot project through the Partnership Fund for Program Integrity Innovation with funding directed through The Administration for Children and Families (ACF), Administration on Children, Youth and Families (ACYF). Implementation of a national inter-jurisdictional Interstate Compact on the Placement of Children (ICPC) electronic system is intended to improve the administrative efficiency in the interstate process via the ICPC.
The AAICPC as an affiliate of the APHSA is uniquely positioned to scale up this project due to their governance of the placement of children across state lines for purposes of foster care, adoption and residential placements.
The first year of this 3 year project will begin June 1, 2015 and end May 31, 2016. Pending the availability of grant funds, the same level will be made available for 2 subsequent years to complete the expansion of the NEICE.
June Dorn, National Adoption Specialist, Division of Capacity Building, 1250 Maryland Avenue SW., Suite 8150, Washington, DC 20024. Telephone: 202-205-9540; Email:
The statutory authority is title II, section 203(b) of the Child Abuse Prevention and Treatment and Adoption Reform Act of 1978 (42 U.S.C. 5113(b)(3)), as most recently amended by CAPTA Reauthorization Act of 2010.
Administration for Community Living, Department of Health and Human Services.
Final priority.
The Administrator of the Administration for Community Living announces a priority for the Rehabilitation Research and Training Center (RRTC) Program administered by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR). Specifically, we announce a priority for an RRTC on Outcomes Measurement for Home and Community Based Services. The Administrator of the Administration for Community Living may use this priority for competitions in fiscal year (FY) 2015 and later years. We take this action to focus research attention on an area of national need. We intend for this priority to contribute to improved home and community based services for individuals with disabilities.
Marlene Spencer, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5133, Potomac Center Plaza (PCP), Washington, DC 20202-2700. Telephone: (202) 245-7532 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
The purpose of the RRTCs, which are funded through the Disability and Rehabilitation Research Projects and Centers Program, is to achieve the goals of, and improve the effectiveness of, services authorized under the Rehabilitation Act through well-designed research, training, technical assistance, and dissemination activities in important topical areas as specified by NIDILRR. These activities are designed to benefit rehabilitation service providers, individuals with disabilities, family members, policymakers and other research stakeholders. Additional information on the RRTC program can be found at:
We published a notice of proposed priority (NPP) for this program in the
There are differences between the proposed priority and this final priority.
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.
The Administrator of the Administration for Community Living establishes a priority for the RRTC on Outcomes Measurement for Home and Community Based Services. The RRTC will engage in research, development, and testing of measures to assess the quality of HCBS in terms of the person-centered outcomes achieved by people with disabilities who use the services in home and community settings. The RRTC will also engage in knowledge translation, development of informational products, and dissemination to enhance the field's capacity to measure the extent to which HCBS leads to improved outcomes in community living and independent living areas that are important to people with disabilities and other stakeholders.
Ultimately, the RRTC's development of non-medical, person-centered outcome measures is intended to inform the design, implementation, and continuous improvement of Federal and state policies and programs related to the delivery of HCBS to people with disabilities. The RRTC must contribute to these outcomes by:
(a) Identifying or developing measures, and then testing the reliability, validity, and usability of those proposed measures to assess the person-centered outcomes of individuals with disabilities who are receiving home and community-based services. HCBS measures developed under this priority must be non-medical and must focus on the end-users' experience of community living, independent living, social integration, community participation, and other similar outcomes. The measures developed under this priority must also be designed to minimize data collection burden on HCBS recipients. Possible methods for minimizing this burden include, but are not limited to, use of relevant administrative data, modifying administrative data to include person-centered goals as well as fields to assess progress toward those goals, and use of advanced item-scaling and person-centered measurement techniques that can be implemented as computerized adaptive tests (CAT).
(b) Increasing incorporation of the RRTC's HCBS outcome measures into practice and policy. The RRTC must contribute to this outcome by—
(1) Working closely with NIDILRR and the Administration for Community Living (ACL) at each stage of the measure development and testing processes to ensure that its activities are informing and informed by other HCBS quality initiatives taking place within ACL and other relevant Federal and state agencies. This specifically includes the work taking place under the National Quality Forum's work with the Department of Health and Human Services (
(2) Developing procedures and mechanisms for applying HCBS outcome measures in policy and service delivery settings to maximize quality and appropriateness of HCBS from the end-user perspective.
(3) Collaborating with stakeholder groups to develop, evaluate, or implement strategies to increase utilization of new HCBS outcome measures. Stakeholder groups include but, are not limited to, people with disabilities, Federal- and state-level policymakers; home and community based service providers; advocacy organizations; and Centers for Independent Living.
(4) Collaborating with relevant NIDILRR-sponsored knowledge translation grantees to help promote the uptake of RRTC products by relevant stakeholders and embed the outcome measures into the overall health care measurement system.
(c) Serving as a national resource center related to person-centered measurement of HCBS outcomes:
(1) Disseminating information and providing technical assistance related to HCBS outcome and quality measurement to policymakers, service providers, people with disabilities and their representatives, and other key stakeholders; and
(2) Providing relevant and appropriate training, including graduate, pre-service, and in-service training, to HCBS providers, researchers and quality-measurement personnel, and other disability service providers, to facilitate more effective delivery of HCBS to people with disabilities. This training may be provided through conferences, workshops, public education programs,
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
You may also access documents of the Department published in the
Administration for Community Living, Department of Health and Human Services.
Notice.
In 2012, ACL, in partnership with the Centers for Medicare & Medicaid Services (CMS) and the Veterans Health Administration (VHA), issued a special funding opportunity known as the “Part A: The Enhanced ADRC Options Counseling Program” (Part A). The Part A grants were awarded to eight states (CT, MA, MD, NH, OR, VT, WI and WA) to develop a NWD System in their state so the federal partners could leverage the experience and models emerging in these states to serve as the basis for the development of national standards. The one year extension will enable the 8 Part A state grantees to continue their work with ACL, CMS and VHA specifically to further refine the tools, metrics and key elements of a NWD System and pilot the Person Centered Counseling training program.
Estimated Project Period—September 30, 2015 through September 30, 2016.
Program Name: No Wrong Door System/Aging and Disability Resource Centers
Award Amount:
Project Period: 9/30/2015 to 9/30/2016
Award Type: Cooperative Agreement
The statutory authority for grants under this funding opportunity is contained in Title IV of the Older Americans Act (OAA) (42U.S.C. 3032), as amended by the Older Americans Act Amendments of 2006, P.L. 109-365. Title II Section 202b of the OAA (Pub. L. 109-365) specifically authorizes the Assistant Secretary for Aging to work with the Administrator of the Centers for Medicare & Medicaid Services to: “implement in all states Aging and Disability Resource Centers.”
Catalog of Federal Domestic Assistance (CFDA) Number: 93.048 Discretionary Projects
ACL, in partnership with the Centers for Medicare & Medicaid Services (CMS) and the Veterans Health Administration (VHA) have supported state efforts to create “one-stop-shop” access programs for people seeking long term services and supports (LTSS) through a No Wrong Door (NWD) System. A NWD System makes it easy for people of all ages, disabilities and income levels to learn about and access the services and supports they need. A NWD System also provides states with a vehicle for better coordinating and integrating existing multiple access functions associated with their various state administered programs that pay for LTSS.
Justification: In order to achieve original goals of the funding opportunity, ACL with its federal partners will utilize this additional time and funds to continue to work with the Part A grantees using a learning collaborative approach to pilot the Person Centered Counseling training program and further refine the key elements for the NWD System, along with a set of tools, metrics, and best practices, all states could use to develop a single “high performing” NWD system of Access to LTSS that would effectively serve all populations.
For further information or comments regarding this action, contact Lori Gerhard, U.S. Department of Health and Human Services, Administration for Community Living, Center for Consumer Access and Self-Determination, Office of Integrated Programs, One Massachusetts Avenue, NW. Washington, DC 20001; telephone
Administration for Community Living, Department of Health and Human Services.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2015.
The purpose of the RRTCs, which are funded through the Disability and Rehabilitation Research Projects and Centers Program, is to achieve the goals of, and improve the effectiveness of, services authorized under the Rehabilitation Act through well-designed research, training, technical assistance, and dissemination activities in important topical areas as specified by NIDILRR. These activities are designed to benefit rehabilitation service providers, individuals with disabilities, family members, policymakers and other research stakeholders. Additional information on the RRTC program can be found at:
These priorities are:
Priority 2—
29 U.S.C. 762(g) and 764(b)(2).
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2015 and any subsequent year from the list of unfunded applicants from this competition.
We will reject any application that proposes a budget exceeding the Maximum Amount. The Administrator of the Administration for Community Living may change the maximum amount through a notice published in the
The Department is not bound by any estimates in this notice.
We will reject any application that proposes a project period exceeding 60 months. The Administrator of the Administration for Community Living
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If you request an application from Marlene Spencer, be sure to identify this competition as follows: CFDA number 84.133B-6.
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Each LOI should be limited to a maximum of four pages and include the following information: (1) The title of the proposed project, the name of the applicant, the name of the Project Director or Principal Investigator (PI), and the names of partner institutions and entities; (2) a brief statement of the vision, goals, and objectives of the proposed project and a description of its proposed activities at a sufficient level of detail to allow NIDILRR to select potential peer reviewers; (3) a list of proposed project staff including the Project Director or PI and key personnel; (4) a list of individuals whose selection as a peer reviewer might constitute a conflict of interest due to involvement in proposal development, selection as an advisory board member, co-PI relationships, etc.; and (5) contact information for the Project Director or PI. Submission of a LOI is not a prerequisite for eligibility to submit an application.
NIDILRR will accept the optional LOI via mail (through the U.S. Postal Service or commercial carrier) or email, by June 25, 2015. The LOI must be sent to: Marlene Spencer, U.S. Department of Health and Human Services, 550 12th Street SW., Room 5133, PCP, Washington, DC 20202; or by email to:
For further information regarding the LOI submission process, contact Marlene Spencer at (202) 245-7532. Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We recommend that you limit Part III to the equivalent of no more than 100 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative. You are not required to double space titles, headings, footnotes, references, and captions, or text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative section (Part III).
An applicant should consult NIDRR's Long-Range Plan for Fiscal Years 2013-2017 (78 FR 20299) (Plan) when preparing its application. The Plan is organized around the following research domains: (1) Community Living and Participation; (2) Health and Function; and (3) Employment.
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Date of Pre-Application Meeting: Interested parties are invited to participate in a pre-application meeting and to receive information and technical assistance through individual consultation with NIDILRR staff. The pre-application meeting will be held on June 11, 2015. Interested parties may participate in this meeting by conference call with NIDILRR staff from the Administration for Community Living between 1:00 p.m. and 3:00 p.m., Washington, DC time. NIDILRR staff also will be available from 3:30 p.m. to 4:30 p.m., Washington, DC time, on the same day, by telephone, to provide information and technical assistance through individual consultation. For further information or to make arrangements to participate in the meeting via conference call or to arrange for an individual consultation, contact the person listed under
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one-to-two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
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Applications for grants under Outcomes Measurement for Home and Community Based Services, CFDA Number 84.133B-6, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the RRTC on Outcomes Measurement for Home and Community Based Services competition at
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Marlene Spencer, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5133, Potomac Center Plaza (PCP), Washington, DC 20202-2700. FAX: (202) 245-7323.
Your paper application must be submitted in accordance with the mail instructions described in this notice.
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If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133B-6), 550 12th Street SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Administrator of the Administration for Community Living of the U.S. Department of Health and Human Services.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the program under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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In addition, in making a competitive grant award, the Administrator of the Administration for Community Living also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Health and Human Services 45 CFR part 75.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Administrator of the Administration for Community Living. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Administrator of the Administration for Community Living under 45 CFR part 75. All NIDILRR grantees will submit their annual and final reports through NIDILRR's online reporting system and as designated in the terms and conditions of your NOA. The Administrator of the Administration for Community Living may also require more frequent performance reports under 45 CFR part 75. For specific requirements on reporting, please go to
(c) FFATA and FSRS Reporting
The Federal Financial Accountability and Transparency Act (FFATA) requires data entry at the FFATA Subaward Reporting System (
For further guidance please see the following link:
If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information. Annual and Final Performance reports will be submitted through NIDILRR's online Performance System and as designated in the terms and conditions of your NOA. At the end of your project period, you must submit a final performance report, including financial information.
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• The number of products (
• The average number of publications per award based on NIDILRR-funded research and development activities in refereed journals.
• The percentage of new NIDILRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDILRR uses information submitted by grantees as part of their Annual Performance Reports for these reviews.
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Marlene Spencer, U.S. Department of Health and Human Services, 400 Maryland Avenue SW., Room 5133, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7532 or by email:
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for a new collection. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before June 22, 2015.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the Information Collection Request Title and document identifier HHS-OS-0990-New-30D for reference.
(1) Increased the knowledge of providers,
(2) Facilitated the integration of pregnancy planning into the care of HIV-positive women/women with HIV-positive partners, and
(3) Increased access to innovative HIV prevention options in communities with high HIV prevalence.
○ HIV Primary Care Providers
▪ Anyone who provides primary HIV care to persons of reproductive age (15-49)
○ Reproductive Health Care Providers
▪ Anyone who provides reproductive health care to HIV+ persons or HIV- persons with HIV+ partners.
○ HIV-positive and HIV-negative women receiving reproductive health care
Notice is hereby given of a change in the meetings of the National Institute of Child Health and Human Development Special Emphasis Panel, June 11, 2015, 2:00 p.m. to June 11, 2015, 4:00 p.m., National Institutes of Health, 6100 Executive Boulevard, Rockville, MD 20852 which was published in the
The meeting notice is amended to change the date/time from June 11, 2015 @ 2:00 p.m. to June 12, 2015 @ 3:00 p.m. The meeting is closed to the public.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Ukiah Field Office, Ukiah, California intends to prepare a Resource Management Plan (RMP) amendment with an associated Environmental Assessment (EA) for the California Coastal National Monument (CCNM) and by this notice is announcing the beginning of a scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the RMP amendment and associated EA. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through the local news media, newspapers and the BLM Web site at:
You may submit comments on issues and the planning criteria related to the RMP Amendment and EA by the following methods:
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Documents pertinent to this proposal may be examined at the Ukiah Field Office, 2550 North State Street, Ukiah, CA 95482.
Jonna Hildenbrand, Planning and Environmental Coordinator, telephone 707-468-4000; address Bureau of Land Management, 2550 North State Street, Ukiah, CA 95482; or email
The BLM approved the Record of Decision (ROD) for the California Coastal National Monument RMP on September 2005. On March 11, 2014, the Point Arena-Stornetta Management Area was included as the first mainland based portion of the California Coastal National Monument by Presidential Proclamation and named the Point Arena-Stornetta Unit of the California Coastal National Monument. The RMP amendment will incorporate relevant new information to provide management goals and objectives, and to identify allowable uses of the area, consistent with current management documents, including the Presidential Proclamation, Deed Restrictions of the transfer of the property, the existing CCNM RMP, and BLM Manual 6620 (National Monuments, National Conservation Areas, and Similar Designations).
The planning area is in Mendocino County and encompasses 1,665 acres of public land. The purpose of the public scoping process is to determine relevant issues that will inform the scope of the environmental analysis, including alternatives, and guide the planning process. Preliminary issues for the plan amendment area have been identified by the BLM; Federal, State, and local agencies; and other stakeholders. The issues include recreation management, travel management, access, livestock grazing and potential new land use authorizations such as rights-of-ways.
Preliminary planning criteria include:
1. The BLM will comply with FLPMA, NEPA, the Presidential Proclamation, Deed Restrictions at the time of transfer of the property and all other applicable laws;
2. The BLM will coordinate with local and county governments for analysis of economic and social impacts;
3. The BLM will conduct government-to-government consultation with federally recognized tribes;
4. The BLM will comply with Rangeland Health Standards and Guidelines; and
5. The BLM will consider the cost-effectiveness of proposed actions and alternatives.
You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed above in the
The BLM will utilize and coordinate the NEPA scoping process to help fulfill the public involvement process under the National Historic Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources. The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you 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. The minutes and list of attendees for each scoping meeting will be available to the public and open for 30 days after the meeting to any participant who wishes to clarify the views he or she expressed.
BLM will evaluate identified issues to be addressed in the plan, and will place them into one of three categories:
1. Issues to be resolved in the plan amendment;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan amendment.
The BLM will provide an explanation in the EA as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed in the plan. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use an interdisciplinary approach to develop the plan amendment in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: Rangeland management, minerals and geology, outdoor recreation, archaeology, wildlife and fisheries, lands and realty, hydrology, soils, and sociology and economics.
40 CFR 1501.7 and 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to reopen the request for public nominations for certain Bureau of Land Management (BLM) Resource Advisory Councils (RAC) that have member terms expiring this year. These RACs provide advice and recommendations to the BLM on land use planning and management of the National System of Public Lands within their geographic areas. The RACs covered by this request for nominations are identified below. The BLM will accept public nominations for 30 days after the publication of this notice.
All nominations must be received no later than June 22, 2015.
See
Mark Purdy, U.S. Department of the Interior, Bureau of Land Management, WO-630, Division of Regulatory Affairs, 20 M Street SE., Washington, DC 20003-3503; 202-912-7635.
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR subpart 1784 and include the following three membership categories:
Those who have already submitted a nomination in response to the first call for nominations (published in the
This request for public nominations also applies to the Carrizo Plain National Monument Advisory Committee (Committee) in California established under Presidential proclamation. The Committee advises the Secretary of the Interior in managing the Carrizo Plain National Monument.
The following must accompany all nominations for the RACs and Committee:
Simultaneous with this notice, BLM State Offices will issue press releases providing additional information for submitting nominations, with specifics about the number and categories of member positions available for each RAC in the State and the Carrizo Plain National Monument Advisory Committee. Nominations and completed applications for RACs and the Committee should be sent to the appropriate BLM offices listed below:
Thom Jennings, Alaska State Office, BLM, 222 West 7th Avenue, #13, Anchorage, AK 99513, (907) 271-3335.
David Christy, Mother Lode Field Office, BLM, 5152 Hillsdale Circle, El Dorado Hills, CA 95762, (916) 941-3146.
Kyle Sullivan, Royal Gorge Field Office, BLM, 3028 East Main Street, Cañon City, CO 81212, (719) 269-8553.
Chris Joyner, Grand Junction Field Office, BLM, 2815 H Road, Grand Junction, CO 81506, (970) 244-3097.
Shannon Borders, Southwest District Office, BLM, 2465 South Townsend Avenue, Montrose, CO 81401, (970) 240-5399.
Marsha Buchanan, Boise District Office, BLM, 3948 Development Avenue, Boise, ID 83705, (208) 384-3393.
Suzanne Endsley, Coeur d'Alene District Office, BLM, 3815 Schreiber Way, Coeur d'Alene, ID 83815, (208) 769-5004.
Sarah Wheeler, Idaho Falls District Office, BLM, 1405 Hollipark Drive, Idaho Falls, ID 83401, (208) 524-7613.
Heather Tiel-Nelson, Twin Falls District Office, BLM, 2536 Kimberly Road, Twin Falls, ID 83301, (208) 736-2352.
David Abrams, Butte Field Office, BLM, 106 North Parkmont, Butte, MT 59701, (406) 533-7617.
Chris Rose, Nevada State Office, BLM, 1340 Financial Boulevard, Reno, NV 89502, (775) 861-6480.
Stephen Baker, Oregon State Office, BLM, 333 SW First Avenue, P.O. Box 2965, Portland, OR 97204, (503) 808-6306.
Sherry Foot, Utah State Office, BLM, 440 West 200 South, Suite 500, P.O. Box 45155, Salt Lake City, UT 84101, (801) 539-4195.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, and the U.S.
The John Day—Snake RAC will hold a public meeting Thursday, June 18, and Friday, June 19, 2015. The meeting will run from 8:00 a.m. to 4:30 p.m. on June 18th, and from 8 a.m. to 1:00 p.m. on June 19th. The meeting will be held in the Sternwheel Ballroom at the Quality Inn & Suites Conference Center in Clarkston, Washington, and will include a field trip to the Hells Canyon Recreation Area. A public comment period will be available on the second day of the session.
Lisa Clark, Public Affairs Specialist, BLM Prineville District Office, 3050 NE. 3rd Street, Prineville, Oregon 97754, (541) 416-6864, or email
The John Day—Snake RAC consists of 15 members chartered and appointed by the Secretary of the Interior. Their diverse perspectives are represented in commodity, conservation, and general interests. They provide advice to BLM and Forest Service resource managers regarding management plans and proposed resource actions on public land in central and eastern Oregon. Agenda items for the June 2015 meeting include a field tour of the Hells Canyon Recreation Area, an update on the John Day Basin Resource Management Plan and the Blue Mountain Forest Plan Revision, a presentation of the business plan and request for fee increase for the Lower Deschutes River, committee and member updates, and any other matters that may reasonably come before the John Day—Snake RAC. This meeting is open to the public in its entirety; however, transportation on jet boats during the field tour portion of the meeting on June 18 will not be provided to members of the public. Information to be distributed to the John Day—Snake RAC is requested prior to the start of each meeting. A public comment period will be available on June 19, 2015, at 9:30 a.m. Unless otherwise approved by the John Day—Snake RAC Chair, the public comment period will last no longer than 30 minutes. Each speaker may address the John Day—Snake RAC for a maximum of 5 minutes. A public call-in number is provided on the John Day—Snake RAC Web site at
National Park Service, Interior.
Notice; request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the Information Collection (IC) described below. The National Park Service is exploring ways to reduce the risk of damage to structures and natural systems from destructive storm surge and sea level rise. We will collect information from stakeholders' about their values and perceptions of climate change-related vulnerabilities and adaptation strategies for managing cultural resources within the two historic districts (Portsmouth Village and Lookout Village) at Cape Lookout National Seashore (CALO). Stakeholders will be visitors at Portsmouth Village and Lookout Village, partner organizations, local community members with ties to the historic districts, federal, state and private cultural resource experts. This collection will be used to inform cultural resource adaptation planning efforts (
To ensure that your comments on this IC are considered, we must receive them on or before July 20, 2015.
Please send your comments to Phadrea Ponds, Information Collections Coordinator, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525 (mail); or
Janet Cakir, Ph.D., NPS SER Climate Change, Socioeconomics, and Adaptation Coordinator, South Atlantic Landscape Conservation Cooperative, 1751 Varsity Dr., Raleigh, NC 27606 (mail) or
Managers of Cape Lookout National Seashore (CALO) are interested in identifying ways to reduce the risk of damage to coastal buildings and sensitive species from storm surge, sea level rise, and shoreline erosion anticipated over the next 20 to 30 years. Of specific interest to managers are contemporary cultural resource values and perceptions of cultural resource vulnerability and feasible adaptation strategies to sustain its cultural resources for future generations. The National Park Service (NPS) will conduct a survey of visitors to the two historic districts (Portsmouth Village and Lookout Village) at Cape Lookout National Seashore (CALO), a survey with members of CALO's partner organizations, interview local community members with connections to the historic districts, and conduct a survey with cultural resource experts from federal and state agencies and nongovernmental organizations.
The collection will be used to understand the values stakeholders place on cultural resources within the historic districts, and perceptions of strategies to adapt and respond to changes in cultural resource conditions from storms, flooding, and erosion. The information from this collection will provide NPS managers and planners with information that can be used to prepare resource management planning documents.
Lessons learned from this study may be applied to support cultural resource adaptation planning for units across the NPS system.
Public Disclosure Statement: The PRA (44 U.S.C. 3501,
We invite comments concerning this IC on:
• Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful;
• The accuracy of the agency's estimate of the burden of the proposed collection of information;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice of availability.
The National Park Service, has prepared and approved a Record of Decision for the Final Environmental Impact Statement for the new General Management Plan (GMP) for Golden Gate National Recreation Area. Approval of the GMP concludes a very extensive public engagement and conservation planning and environmental impact analysis effort that began during 2006. The requisite no-action “wait period” was initiated on April 25, 2014, with the Environmental Protection Agency's
Those wishing to review the Record of Decision for the GMP may obtain a copy by contacting the General Superintendent, Golden Gate National Recreation Area, Building 201, Fort Mason, San Francisco, CA 94123, or via telephone request at (415) 561-4930.
Brian Aviles, Senior Planner, Golden Gate National Recreation Area, (415) 561-4942.
The National Park Service (NPS) has approved the Record of Decision for the GMP/Final Environmental Impact Statement which will guide management of park lands within Golden Gate National Recreation Area (GGNRA) over the next 20 years. Following establishment in 1972, the GGNRA has been operating under a 1980 GMP. Since then GGNRA has doubled in size and visitation now approaches 16 million annually.
The NPS has selected Alternative 1
The NPS has selected Alternative 3
Four alternatives, including a no-action alternative, were described and evaluated in the Final Environmental Impact Statement, the full range of foreseeable environmental consequences was assessed, and
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 11) granting the complainant's motion to terminate the above-captioned investigation in its entirety on the basis of withdrawal of the complaint. The Commission has terminated the investigation.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2532. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on December 24, 2014, based on a complaint filed by Arctic Cat Inc. of Plymouth, MN (“Arctic Cat”). 79 FR 77526 (Dec. 24, 2014). The complaint alleged violations of section 337 of the Tariff Act of 1930,
On April 23, 2015, Arctic Cat filed an unopposed motion to terminate the investigation in its entirety based upon withdrawal of the complaint. On April 24, 2015, the ALJ granted the motion as an ID (Order No. 11).
No petitions for review were filed. The Commission has determined not to review the ID. The Commission has terminated the investigation.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Notice of application.
Registered bulk manufacturers of the affected basic classes and applicants therefore may file written comments or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before July 20, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.33(a), this is notice that on December 11, 2014, PCAS-Nanosyn, LLC, 3331-B Industrial Drive, Santa Rosa, California 95403 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company is a contract manufacturer. At the request of the company's customers, it manufactures derivatives of controlled substances in bulk form.
Notice of registration.
Myoderm applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Myoderm registration as an importer of those controlled substances.
By notice dated February 5, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Myoderm to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the basic classes controlled substances:
The company plans to import the listed controlled substances in finished dosage form for clinical trials, and research.
The import of the above listed basic classes of controlled substances will be granted only for analytical testing and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial sale.
Notice of registration.
Mylan Pharmaceuticals, Inc. applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Mylan Pharmaceuticals, Inc. registration as an importer of those controlled substances.
By notice dated January 9, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Mylan Pharmaceuticals, Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the basic classes of controlled substances:
The company plans to import the listed controlled substances in finished dosage form (FDF) from foreign sources for analytical testing and clinical trials in which the foreign FDF will be compared to the company's own domestically-manufactured FDF. This analysis is required to allow the company to export domestically-manufactured FDF to foreign markets.
Notice of registration.
Noramco, Inc. applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Noramco, Inc. registration as an importer of those controlled substances.
By notice dated January 9, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Noramco, Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the basic classes of controlled substances:
The company plans to import raw Opium (9600) and Poppy Straw concentrate (9670) to bulk manufacture other controlled substances for distribution to its customers. The company plans to import an intermediate form of tapentadol (9780) to bulk manufacture tapentadol (9780) for distribution to its customers. The company plans to import Phenylacetone (8501) in bulk for the manufacture of a controlled substance.
Notice of registration.
Mallinckrodt, LLC applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Mallinckrodt, LLC registration as an importer of those controlled substances.
By notice dated February 5, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Mallinckrodt, LLC to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the basic classes controlled substances:
The company plans to import the listed controlled substances for the manufacture of controlled substances in bulk for distribution to its customers.
In reference to Phenylacetone (8501), the company plans to import the controlled substance for the bulk manufacture of amphetamine products for sale to its customers.
Notice of registration.
Fisher Clinical Services, Inc. applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Fisher Clinical Services, Inc. registration as an importer of those controlled substances.
By notice dated January 9, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Fisher Clinical Services, Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the basic classes of controlled substances:
The company plans to import the listed substances for analytical research, testing, and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
The company plans to import an intermediate form of tapentadol (9780) to bulk manufacture tapentadol for distribution to its customers.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the 80 FR 13892 on March 17, 2015, allowing for a 60 day comment period.
The purpose of this notice is to allow for an additional 30 days for public comment until June 22, 2015.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Anita Scheddel at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this Information Collection 1140-0062:
(1) Type of Information Collection: Extension of an existing collection.
(2) Title of the Form/Collection: Identification of Imported Explosive Materials.
(3) Agency form number, if any, and the applicable component of the Department sponsoring the collection:
Form number: None.
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
(4) Affected public who will be asked or required to respond, as well as a brief abstract:
Primary: Business or other for-profit.
Other: None.
Abstract: The information is necessary to ensure that explosive materials can be effectively traced. All licensed importers are required to identify by marking all explosive materials they import for sale or distribution. The process provides valuable information in explosion and bombing investigations.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: An estimated 15 respondents will spend 1 hour placing marks of identification on imported explosives 3 times annually.
(6) An estimate of the total public burden (in hours) associated with the collection: The estimated annual public burden associated with this collection is 45 hours.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
Executive Office for Immigration Review, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Executive Office for Immigration Review, 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.
Comments are encouraged and will be accepted for 60 days until July 20, 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 Jean King, Acting General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia 20530; telephone: (703) 305-0470.
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.
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.
Executive Office for Immigration Review, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Executive Office for Immigration Review, 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.
Comments are encouraged and will be accepted for 60 days until July 20, 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 Jean King, Acting General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia 20530; telephone: (703) 305-0470.
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.
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.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements contained in the Standards on Marine Terminals (29 CFR part 1917) and Longshoring (29 CFR part 1918).
Comments must be submitted (postmarked, sent, or received) by July 20, 2015.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The Standards on Marine Terminals and Longshoring contain a number of collections of information which are used by employers to ensure that employees are informed properly about the safety and health hazards associated with marine terminals and longshoring operations. OSHA uses the records developed in response to the collection of information requirements to find out if the employer is complying adequately with the provisions of the standards.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements contained in the Standards on Marine Terminals (29 CFR part 1917) and Longshoring (29 CFR part 1918). The Agency is requesting an increase in its current burden hour estimate from 47,398 hours to 65,694 hours, a difference of 18,296 hours. This increase in the burden hours is due to an increase in longshoring operations from 808 to 871 establishments and an increase in the number of establishments in port and habor operations from 212 to 525. The Agency will summarize any comments submitted in response to this notice and will include this summary in its request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of Curtis-Straus LLC for expansion of its recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the Agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before June 5, 2015.
Submit comments by any of the following methods:
1.
2.
3.
4.
5.
6.
Information regarding this notice is available from the following sources:
The Occupational Safety and Health Administration is providing notice that
OSHA recognition of an NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by its applicable test standard; and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The Agency processes applications by an NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
CSL currently has one facility (site) recognized by OSHA for product testing and certification, with its headquarters located at: Curtis-Straus LLC, One Distribution Center Circle, Suite #1, Littleton, Massachusetts 01460. A complete list of CSL's scope of recognition is available at
CSL submitted two applications, one dated August 9, 2014, and one dated February 25, 2015 (CSL Exhibit 1—Expansion Application for Eight Standards and CSL Exhibit 2—Expansion Application for One Standard), to expand its recognition to include nine additional test standards. These two applications were combined. OSHA staff performed a comparability analysis and reviewed other pertinent information. OSHA performed an on-site review in relation to these applications on January 27, 2015 to January 28, 2015.
Table 1 below lists the appropriate test standards found in CSL's applications for expansion for testing and certification of products under the NRTL Program.
CSL submitted acceptable applications for expansion of its scope of recognition. OSHA's review of the application file, and on-site review, indicates that CSL can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of the test standards for NRTL testing and certification listed above. This preliminary finding does not constitute an interim or temporary approval of CSL's applications.
OSHA welcomes public comment as to whether CSL meets the requirements of 29 CFR 1910.7 for expansion of its recognition as an NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. Commenters must submit the written request for an extension by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer period. OSHA may deny a request for an extension if the request is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Room N-2625, Occupational Safety and Health Administration, U.S. Department of Labor, at the above address. These materials also are available online at
OSHA staff will review all comments to the docket submitted in a timely manner and, after addressing the issues raised by these comments, will recommend to the Assistant Secretary for Occupational Safety and Health whether to grant CSL's application for expansion of its scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of its final decision in the
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Asbestos in Shipyards Standard (29 CFR 1915.1001).
Comments must be submitted (postmarked, sent, or received) by July 20, 2015.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651
The information collection requirements specified in the Asbestos in Shipyards Standard protect workers from the adverse health effects that may result from occupational exposure to asbestos. The major information collection requirements in the standard include: implementing an exposure-monitoring program that informs workers of their exposure-monitoring results; ensuring notification of on-site employers, at multi-employer worksites, when establishing regulated areas for work performed with asbestos-containing materials (ACMs) and/or presumed asbestos-containing materials (PACMs), of the requirements for such regulated areas, and the measures necessary to protect workers from overexposure; providing medical surveillance for workers potentially exposed to ACMs and/or PACMs, including administering a worker medical questionnaire, providing information to the examining physician, and providing the physician's written opinion to the worker; and maintaining records of objective data used for exposure determinations, worker exposure monitoring and medical surveillance records, training records, the record (
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is proposing a reduction in the information collection requirements contained in the Asbestos in Shipyards Standard (29 CFR 1915.1001). The adjustment is primarily the result of the removal of the training requirements from the ICR, which is not considered a paperwork burden for employers as associated training is conducted and documented by an EPA-approved or state-approved provider. Thus, despite a
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
Information on using the
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice of public meeting.
This notice is to advise interested persons that on Wednesday, June 10, 2015, OSHA will conduct a public meeting to discuss proposals in preparation for the 29th session of the United Nations Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS) to be held June 29 to July 1, 2015 in Geneva, Switzerland. OSHA, along with the U.S. Interagency GHS (Globally Harmonized System of Classification and Labelling of Chemicals) Coordinating Group, plans to consider the comments and information gathered at this public meeting when developing the U.S. Government positions for the UNSCEGHS meeting.
Also, on Wednesday, June 10, 2015, the Department of Transportation (DOT), Pipeline and Hazardous Materials Safety Administration (PHMSA) will conduct a public meeting (See Docket No. PHMSA-2015-0101, Notice No. 15-6) to discuss proposals in preparation for the 47th session of the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE TDG) to be held June 22 to June 26, 2015, in Geneva, Switzerland. During this meeting, PHMSA is also soliciting comments relative to potential new work items which may be considered for inclusion in its international agenda and feedback on issues that PHMSA may put forward for consideration by the Sub-Committee, such as enhanced recognition of alternative test methods relevant to the classification of corrosive materials (see further discussion under the
Wednesday, June 10, 2015.
Both meetings will be held at the DOT Headquarters Conference Center, West Building, 1200 New Jersey Avenue SE., Washington, DC 20590.
Conference call-in and “live meeting” capability will be provided for both meetings. Specific information on call-in and live meeting access will be posted when available at:
Maureen Ruskin, Office of Chemical Hazards-Metals, OSHA Directorate of Standards and Guidance, Department of
General topics on the agenda include:
Informal Papers submitted to the UNSCEGHS provide information for the Sub-committee and are used either as a mechanism to provide information to the Sub-committee or as the basis for future Working Papers. Informal Papers for the 29th session of the UNSCEGHS are not yet posted on the UN Web site but when they become available will be located at:
The primary purpose of PHMSA's meeting will be to prepare for the 47th session of the UNSCE TDG. The 47th session of the UNSCE TDG is the first of four meetings scheduled for the 2015-2016 biennium. The UNSCE will consider proposals for the 20th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods Model Regulations, which may be implemented into relevant domestic, regional, and international regulations from January 1, 2019. Copies of working documents, informal documents, and the meeting agenda may be obtained from the United Nations Transport Division's Web site at
General topics on the agenda for the UNSCE TDG meeting include:
Model Regulations
Following the 47th session of the UNSCE TDG, a copy of the Sub-Committee's report will be available at the United Nations Transport Division's Web site at
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the collection of information requirements contained in the Cadmium in Construction Standard (29 CFR 1926.1127).
Comments must be submitted (postmarked, sent, or received) by July 20, 2015.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The collection of information requirements specified in the Cadmium in Construction Standard protect workers from the adverse health effects that may result from their exposure to cadmium. The major collection of information requirements of the Standard include: Conducting worker exposure monitoring, notifying workers of their cadmium exposures, implementing a written compliance program, implementing medical surveillance of workers, providing examining physicians with specific information, ensuring that workers receive a copy of their medical surveillance results, maintaining workers' exposure monitoring and medical surveillance records for specific periods, and providing access to these records by the worker who is the subject of the records, the worker's representative, and other designated parties.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed collection of information requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the collection of information requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
The Agency is requesting an adjustment decrease of 3,511 burden hours (from 37,231 to 33,720 burden hours) to account for the determination, upon further consideration, that neither training delivery nor collection of records during OSHA inspections constitute collections of information under the PRA-95. While OSHA believes exposures likely have decreased, without specific updated data, OSHA has retained the existing estimates regarding the number of construction sites, employers and employees covered by the Standard.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Protection Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The Meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, June 8, 2015, 1:00 p.m. to 4:00 p.m.; Tuesday, June 9, 2015, 8:30 a.m. to 5:00 p.m.; and Wednesday, June 10, 2015, 9:30 a.m. to 4:00 p.m., Local Time.
NASA Headquarters, Room 6H41, 300 E Street SW., Washington, DC 20546.
Ms. Ann Delo, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-0750, fax (202) 358-2779.
The meeting will be open to the public up to the capacity of the room. The meeting will also be available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 844-467-6272, passcode 197792, to participate in this meeting by telephone. The WebEx link is
The agenda for the meeting includes the following topics:
U.S. citizens and Permanent Residents (green card holders) are requested to submit their name and affiliation 3 working days prior to the meeting to Ann Delo.
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Nuclear Regulatory Commission.
Interim staff guidance; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Interim Staff Guidance (ISG) NSIR/DPR-ISG-02, “Emergency Planning Exemption Requests for Decommissioning Nuclear Power Plants,” May 11, 2015. This document provides guidance for NRC staff to produce clear and consistent reviews of requests for exemptions and license amendments for defueled station emergency plans submitted by licensees after permanent cessation of operations.
Please refer to Docket ID NRC-2014-0002 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:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Michael Wasem, telephone: 301-287-3793, email:
Currently, licensees of permanently shut down and defueled nuclear power plants are required to maintain emergency plans meeting the same requirements as emergency plans for operating nuclear power plants. Nuclear power plants that have permanently ceased operating and permanently removed fuel from the reactor vessel, with spent fuel stored in the spent fuel pool and/or in dry cask storage provide less of a risk of radiological releases than operating nuclear power plants. Licensees of these decommissioning plants have historically submitted requests for exemption from emergency preparedness regulations based on this lower risk. The final ISG will be used by NRC staff for future submittals and reflects the experience of NRC staff in the technical review of exemptions requested for the Kewaunee Power Station (KPS), as documented in SECY-14-0066, “Request by Dominion Energy Kewaunee, Inc. for Exemptions from Certain Emergency Planning Requirements” (ADAMS Accession No. ML14072A257), and for the review of proposed changes to the KPS emergency plan and emergency action level (EAL) scheme implementing exemptions as approved by the Commission in Staff Requirements Memorandum (SRM) to SECY-14-0066 ADAMS Accession No. ML14219A366). The final ISG is intended to provide guidance for staff to facilitate the clear and consistent reviews of subsequent requests for exemptions to specific emergency plan requirements of part 50 of Title 10 of the
Licensees have historically used the exemption process to decrease the burden of maintaining required parts of emergency plans in cases where continued application of the regulation by the licensee is not necessary to achieve the underlying purpose of the regulation. The findings from previous exemption request reviews, along with the results of studies such as NUREG-2161: “Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor” (ADAMS Accession No. ML14255A365); NUREG-1738, “Technical Study of Spent Fuel Accident Risk at Decommissioning Nuclear Power Plants” (ADAMS Accession No. ML010430066); and NUREG-1864, “A Pilot Probabilistic Risk Assessment of a Dry Cask Storage System at a Nuclear Power Plant” (ADAMS Accession No. ML071340012), inform the technical review of exemptions to specific emergency plan requirements of 10 CFR part 50, and license amendments to a licensee's emergency plan and EAL scheme, as exempted.
The Commission directed the staff in SRMs to SECY-0066 and SECY-14-0118, “Request by Duke Energy Florida, Inc., for Exemptions from Certain Emergency Planning Requirements” (ADAMS Accession No. ML14219A444) to proceed with an integrated rulemaking on decommissioning. It is anticipated that this ISG will be replaced by future guidance developed in conjunction with this rulemaking.
A draft ISG was published for public comment in the
This ISG was revised from the draft that appeared in the
Section 1.0, Purpose, was expanded to include a description of Table 1 (Exemptions for Consideration) and Attachment 1 (Staff Guidance for Evaluation of Permanently Defueled Emergency Plans), and a discussion on how they are to be used by NRC staff. The NRC also added a description of the process to be used for the review of changes to a decommissioning licensee's EALs.
Section 2.0, Scope, was modified to reflect that licensees may submit exemption requests when they notify the NRC of the intent to permanently cease operation. The draft document incorrectly stated that the ISG could only be used after the licensee had certified that the reactor vessel was defueled.
The NRC deleted the term “risk factor” and moved the discussion on risk from Section 3.0, Background, to Section 4.0, Overview of Existing Guidance. A short description of physical security requirements for decommissioning nuclear power reactors was added to Section 3.0.
Table 1 was revised to reflect potential exemption requests based on the Commission's SRM dated August 7, 2014, for SECY-14-0066.
Attachment 1 was replaced in its entirety by a table of the applicable guidance contained in NUREG-0654/FEMA-REP-1 (Revision 1), “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants” (ADAMS Accession No. ML040420012).
NSIR/DPR-ISG-02 is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found
The NRC is issuing interim guidance for the NRC staff regarding its review of requests from licensees of decommissioning nuclear power plants for exemptions from specific emergency plan requirements in 10 CFR part 50 and license amendments to permanently defueled emergency plans. Issuance of the ISG does not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and is not otherwise inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations.
1.
The ISG provides interim guidance to the staff on how to review certain requests for exemption or license amendments. Changes in internal staff guidance are not matters for which applicants or licensees are protected under 10 CFR 50.109 or issue finality provisions in 10 CFR part 52.
2.
The staff does not intend to impose or apply the positions described in the ISG to existing (already issued) licenses (
3.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed below—were intended to apply to every NRC action that substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
If, in the future, the staff seeks to impose a position in the ISG in a manner that does not provide issue finality as described in the applicable issue finality provision, then the staff must address the criteria for avoiding issue finality as described in the applicable issue finality provision.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Regulatory guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Revision 1 to Regulatory Guide (RG) 1.36, “Nonmetallic Thermal Insulation for Austenitic Stainless Steel.” The RG describes methods and procedures that the staff of the U.S. Nuclear Regulatory Commission (NRC) considers acceptable when selecting and using nonmetallic thermal insulation to minimize any contamination that could promote stress-corrosion cracking in the stainless steel portions of the reactor coolant pressure boundary and other systems important to safety. This guide applies to light-water-cooled reactors.
Please refer to Docket ID NRC-2014-0209 when contacting the NRC about the availability of information regarding this document. You may obtain publically-available information related to this document, using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
David W. Alley, Office of Nuclear Reactor Regulation, 301-415-2178 email:
The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. Regulatory guides were developed to describe and make available to the public information and methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
Revision 1 of RG 1.36 was issued with a temporary identification as Draft
Draft Guide (DG)-1312, was published in the
This regulatory guide is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
RG 1.36, Revision 1, provides guidance on one acceptable way of meeting the requirements in GDC 1 and GDC 14 with respect to stress-corrosion cracking in austenitic steel portions of the reactor coolant pressure boundary which are caused in part by contact with nonmetallic thermal insulation. This does not constitute backfitting as defined in Section 50.109 of Title 10 of the
Existing licensees, part 50 construction permit holders and part 50 operating license holders, and applicants of final design certification rules would not be required to comply with the positions set forth in RG 1.36, Revision 1, unless the construction permit or an operating license holder makes a voluntary change to their licensing basis with respect to non-metallic thermal insulation in contact with austenitic stainless steel, and the NRC determines that the safety review must include consideration of the matters addressed in this regulatory guide.
Existing design certification rules would not be required to be amended to comply with the positions set forth in RG 1.36 unless the NRC addresses the issue finality provisions in 10 CFR 52.63(a).
Existing combined license holders (referencing the AP1000 design certification rule in 10 CFR part 52, Appendix D) would not be required to comply with the positions set forth in RG 1.36 unless the NRC addresses the issue finality provisions in 10 CFR 52.63(a).
RG 1.36 may be applied to current applications for operating licenses, combined licenses, and certified design rules docketed by the NRC as of the date of issuance of the revision to the regulatory guide, as well as future applications submitted after the issuance of the revised regulatory guide. Such action would not constitute backfitting as defined in § 50.109(a)(1) or be otherwise inconsistent with the applicable issue finality provision in 10 CFR part 52.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under part 52—with certain exclusions discussed below—were intended to apply to every NRC action which substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever a combined license applicant references a part 52 license (
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Plus 2C negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On May 14, 2015, the Postal Service filed notice that it has entered into an additional Global Plus 2C negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-69 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than May 22, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2015-69 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than May 22, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Plus 1C negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On May 14, 2015, the Postal Service filed notice that it has entered into an additional Global Plus 1C negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-68 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than May 22, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Curtis Kidd to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2015-68 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Curtis Kidd is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than May 22, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule changes consist of modifications to the Rulebook of the Government Securities Division (“GSD”) in connection with the extension of the GCF Repo® service
In its filing with the Commission, FICC 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. FICC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FICC is seeking the Commission's approval to extend the current pilot program (the “2014 Pilot Program”) that is currently in effect for the GCF Repo® service. FICC is requesting that the 2014
By way of background, on July 12, 2011, FICC submitted a rule filing to the Commission (SR-FICC-2011-05) proposing to make certain changes to its GCF Repo service in order to comply with the recommendations that had been made by the Task Force on Triparty Reform (“TPR”), an industry group formed and sponsored by the Federal Reserve Bank of New York.
The rule change described in SR-FICC-2011-05 was proposed to be run as a pilot program for one year starting from the date on which the filing was approved by the Commission (the “2011 Pilot Program”).
The GCF Repo service allows GSD dealer members to trade general collateral repos
The GCF Repo service was developed as part of a collaborative effort among GSCC (FICC's predecessor), its two clearing banks (The Bank of New York Mellon (“BNY”) and JPMorgan Chase Bank, National Association (“Chase”), and industry representatives. GSCC introduced the GCF Repo service on an
In 1999, GSCC expanded the GCF Repo service to permit dealer participants to engage in GCF Repo trading on an
The following simplified example illustrates the manner in which the GCF Repo services works on an
Assume that Dealer B clears at BNY and Dealer C clears at Chase. Further assume that: (i) Outside of FICC, Dealer B engages in a triparty repo transaction with Party X to obtain funds and seeks to invest such funds via a GCF Repo transaction, (ii) outside of FICC, Dealer C engages in a DVP repo with Party Y to buy securities and seeks to finance these securities via a GCF Repo transaction, and (iii) Dealer B and Dealer C enter into a GCF Repo transaction (on a blind basis via a GCF Repo broker) and submit the trade details to FICC.
At the end of “Day 1”, GCF Repo collateral must be allocated,
FICC has established on its own books and records two “securities accounts” as defined in Article 8 of the New York
In our example, Chase, as agent for FICC, will transmit to BNY a description of the securities in the FICC Special Clearance Account at Chase for BNY. Based on this description, BNY will transfer funds equal to the funds borrowed position to the FICC GCF Repo account at Chase. Upon receipt of the funds by Chase, Chase will release any liens it may have on the FICC Special Clearance Account at Chase for BNY, and FICC will release any liens it may have on FICC Account for BNY (both of these accounts being comprised of the same securities). BNY will credit the securities in the FICC Account for BNY to FICC's GCF Repo account at BNY, and BNY will further credit these securities to Dealer B, who, as noted, is in a net long securities position. In the morning of “Day 2,” all securities and funds movements occurring on Day 1, are reversed (“unwind”).
In 2003, FICC shifted the GCF Repo service back to intrabank status only.
In 2007, FICC submitted a rule filing to address the issues raised by the interbank morning funds movement and return the GCF Repo service to interbank status (the “2007 NFE Filing”).
The 2007 NFE Filing replaced the Day 2 morning unwind process with an alternate process, which is currently in effect. Specifically, in lieu of making funds payments, the interbank dealers grant to FICC a security interest in their NFE-related collateral equal to their prorated share of the total interbank funds amount. FICC, in turn, grants to the other clearing bank (that was due to receive the funds) a security interest in the NFE-related collateral to support the debit in the FICC account at the clearing bank. The debit in the FICC account (“Interbank Cash Amount Debit”) occurs because the dealers who are due to receive funds in the morning must receive those funds at that time in return for their release of collateral. The debit in the FICC account at the clearing bank gets satisfied during the end of day GCF Repo settlement process. Specifically, that day's new activity yields a new interbank funds amount that will move at end of day—however, this amount gets netted with the amount that would have been due in the morning, thus further reducing the interbank funds movement. The NFE holds are released when the interbank funds movement is made at end of day. The 2007 NFE Filing did not involve any changes to the after-hours movement of securities occurring at the end of the day on Day 1. Using our simplified example:
On the morning of Day 2, Dealer C who needs to return funds in the unwind, instead of returning the funds in the morning, grants to FICC a security interest in Dealer C's NFE-related collateral equal to its funds movement (we have assumed only one GCF Repo transaction took place in this simplified example). FICC, in turn, grants BNY (that was due to receive the funds) a security interest in the NFE-related collateral to support the debit in the FICC account at BNY. As noted above, the debit in FICC's account at BNY arises because, under the current processing, Dealer B must receive its funds during the morning unwind. The FICC debit is then satisfied during the end of day GCF Repo settlement process.
As part of the 2007 NFE Filing, FICC imposed certain additional risk management measures with respect to the GCF Repo service. First, FICC imposed a collateral premium (called “GCF Premium Charge”) on the GCF Repo portion of the Clearing Fund deposits of all GCF participants to further protect FICC in the event of an intra-day[sic] default of a GCF Repo participant. FICC requires GCF Repo participants to submit a quarterly “snapshot” of their holdings by asset type to enable Risk Management staff to determine the appropriate Clearing Fund premium. Members who do not submit this required information by the deadlines established by FICC are subject to fine and an increased Clearing Fund premium, as with all other instances of late submission of required information.
Second, the 2007 NFE Filing addressed the situation where FICC becomes concerned about the volume of interbank GCF Repo activity. Such a concern might arise, for example, if market events were to cause dealers to turn to the GCF Repo service for increased funding at levels beyond normal processing. The 2007 NFE Filing provides FICC with the discretion to institute risk mitigation and appropriate disincentive measures in order to bring GCF Repo levels to a comfortable level from a risk management perspective.
In SR-FICC-2011-05, FICC proposed the following rule changes with respect to the GCF Repo service to address the TPR's Recommendations:
(1)(a) To move the Day 2 unwind from 7:30 a.m. to 3:30 p.m., (b) to move the NFE process
(2) To establish rules for intraday GCF Repo collateral substitutions (
During the term of the 2011 Pilot Program, FICC implemented the proposed changes referred to in subsections 1(c) and 1(d) above and during the term of the 2012 Pilot Program, FICC implemented the proposed changes referred to in subsections 1(a), 1(b) and 2 above.
The TPR recommended that the Day 2 unwind for all triparty transactions be moved from the morning to 3:30 p.m. The TPR made this recommendation in order to achieve the benefit of reducing the clearing banks' intraday exposure to the dealers. As stated, because the GCF Repo service is essentially a triparty mechanism, the TPR requested that FICC accommodate this time change. For the GSD rules, this necessitated a change to the GSD's “Schedule of GCF Timeframes.” Specifically, the 7:30 a.m. time in the Schedule was deleted and the language therein was moved to a new time of 3:30 p.m.
Because the Day 2 unwind moved from the morning to 3:30 p.m. and because the NFE process established by the 2007 NFE Filing is tied to the moment of the unwind, the NFE process also was required to move. During 2012, when the systems processing for the tri-party reform effort continued on the part of the clearing banks, the unwind moved to 3:30 p.m. and the funds continued to move between the two clearing banks at 5:00 p.m.; the NFE hold which applies to dealers moved to between 3:30 p.m. and 5:00 p.m. Because the NFE process is a legal process and not an operational process, it is not reflected on the Schedule of GCF Timeframes and therefore no change to the Schedule was required to accommodate the move of the NFE process. A change was needed in Section 3 of GSD Rule 20 to delete the reference to the “morning” timeframe on Day 2 with respect to the NFE process and to add language referencing “at the time established by the Corporation.”
As a result of the time change of the unwind (
If the GCF Repo transaction is between dealer counterparties effecting the transaction through the same clearing bank (
The term “Other Acceptable Securities” means, with respect to: (an) adjustable-rate mortgage-backed security or securities issued by Ginnie Mae, any fixed-rate mortgage-backed security or securities issued by Ginnie Mae, or (an) adjustable-rate mortgage-backed security or securities issued by either Fannie Mae or Freddie Mac: (a) Any fixed-rate mortgage-backed security or securities issued by Fannie Mae and Freddie Mac, (b) any fixed-rate mortgage-backed security or securities issued by Ginnie Mae, or (c) any adjustable-rate mortgage-backed security or securities issued by Ginnie Mae.
For a GCF Repo that was processed on an interbank basis and to accommodate a potential substitution request, FICC initiates a debit of the securities in the account of the lender through the FICC GCF Repo accounts at the clearing bank of the lender and the FICC GCF Repo
In the example above, the GCF Repo securities collateral will be debited from the securities account of the receiver of the collateral (
Simultaneously, with the debit of the GCF Repo securities collateral from the account at the clearing bank (
Using the example from above, assume the Dealer C submits a substitution notification—it requires the securities collateral that has been pledged to Dealer B and will substitute cash and/or securities. BNY will debit the securities from Dealer B's account and the relevant liens will be released so that the securities are in FICC's account at Chase. Chase will credit the securities to Dealer C's account and the cash and/or securities that Dealer C uses for its collateral substitution will be credited by Chase to FICC's account at Chase. From Dealer B's perspective, when BNY debits the securities from Dealer B's account, Dealer B is supposed to receive the funds—but as noted, the funds are at Chase. BNY will credit the funds to Dealer B's account and debit FICC's account at BNY.
At this point in our example, FICC is running a credit at Chase and a debit at BNY. In order to secure FICC's debit at BNY, FICC will grant a security interest in the funds in the FICC account at Chase.
For substitutions that occur with respect to GCF Repo transactions that were processed on an inter-clearing bank basis, FICC and the clearing banks permit cash and/or securities for the substitutions. The proposed rule change provided FICC with flexibility in this regard by referring to FICC's procedures.
As noted above, each of the above-referenced changes were approved in connection with SR-FICC-2011-05,
The proposed rule change is consistent with the Securities and Exchange Act of 1934, as amended (the “Act”) and the rules and regulations promulgated thereunder because it will align the GCF Repo service with recommendations being made by the TPR to address risks in the triparty market overall and therefore will serve to further safeguard the securities and funds for which FICC is responsible.
FICC does not believe that the proposed rule change will have any negative impact, or impose any burden, on competition.
Written comments relating to the proposed rule changes have not yet been solicited or received. FICC will notify the Commission of any written comments received by FICC.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change; or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-FICC-2015-002 and should be submitted on or before June 11, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 1, 2015, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
ICC proposes revising ICC Clearing Rule 401 (“Rule 401”) in order to provide additional clarity regarding settlement finality with respect to Mark-to-Market Margin (as defined in ICC Rule 401). Specifically, the proposed rule change would add new subsections (k) and (l) to Rule 401. ICC states that the new subsections are not intended to change any current ICC practices; rather, such changes are intended to provide additional clarity regarding settlement finality with respect to Mark-to-Market Margin. All capitalized terms not defined herein are defined in the ICC Rules.
ICC proposes adding language in Rule 401(k) to clarify that each Transfer of Mark-to-Market Margin shall constitute a settlement (within the meaning of U.S. Commodity Futures Trading Commission Rule 39.14
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed rule change is consistent with Section 17A of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to amend the Schedule of Fees to introduce tiered Market Maker Plus rebates based on the time quoting at the national best bid or offer (“NBBO”) in specified series. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
In order to promote and encourage liquidity in Select Symbols,
In addition, the Exchange notes that Market Makers that qualify for Market Maker Plus and execute a total affiliated Priority Customer average daily volume (“ADV”)
For purposes of determining Priority Customer ADV, any day that the regular order book is not open for the entire trading day may be excluded from such calculation; provided that the Exchange will only remove the day for members that would have a lower ADV with the day included.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that it is reasonable and equitable to offer tiered Market Maker Plus rebates as these rebates would reward members based on maintaining tight markets in series that they quote on ISE. The Exchange believes that maintaining tight markets benefits all market participants that trade on ISE, and has therefore determined to reflect this more fully in the rebates offered. With this proposal, Market Makers that qualify for Market Maker Plus will receive rebates that reflect the liquidity that they provide at the NBBO. The Exchange notes that it already provides a Market Maker Plus rebate for Market Makers that quote at the NBBO. The proposed rule change merely allows the Exchange to further incentivize Market Makers by reserving the very best rebates for Market Makers that maintain quotes that are at the NBBO the vast majority of the time. In this regard, the Exchange notes that Market Makers that are on the lower end of the current Market Maker Plus requirement will receive lower rebates than they do today, while Market Makers that routinely quote at the NBBO will receive higher rebates than currently offered. The Exchange does not believe that this is unfairly
The Exchange further believes that it is reasonable, equitable, and not unfairly discriminatory to eliminate the higher Market Maker Plus rebate currently provided to Market Makers that qualify for Market Maker Plus and execute a total affiliated Priority Customer ADV of 200,000 contracts or more as this incentive is no longer needed. Market Makers that wish to receive higher rebates may continue to do so by qualifying for the new highest tier of Market Maker Plus rebate offered to Market Makers that are on the NBBO in applicable series at least 95% of the time. The Exchange believes that this will be a more effective incentive for Market Makers to actively participate in the Market Maker Plus program as it is based on the quality of markets quoted and not tied to affiliated member volume.
In accordance with Section 6(b)(8) of the Act,
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
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
Nasdaq proposes a rule change with respect to PowerShares DB Optimum Yield Diversified Commodity Strategy Portfolio, PowerShares Agriculture Commodity Strategy Portfolio, PowerShares Precious Metals Commodity Strategy Portfolio, PowerShares Energy Commodity Strategy Portfolio, PowerShares Base Metals Commodity Strategy Portfolio and PowerShares Bloomberg Commodity Strategy Portfolio (each, a “Fund,” and collectively, the “Funds”), each a series of PowerShares Actively Managed Exchange-Traded Commodity Fund Trust (the “Trust”).
The rule change is being filed to reflect a proposed change to the current principal investment strategies of each Fund (which are set forth in detail in an order previously granted by the Commission
Except for the changes discussed below, all other facts presented and representations made in the Prior Release remain unchanged and in full effect. All capitalized terms referenced but not defined herein have the same meaning as in the Prior Release.
The text of the proposed rule change is available at
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Each Fund is an actively managed exchange-traded fund (“ETF”) whose shares (“Shares”) are offered, or will be offered, by the Trust, a statutory trust organized under the laws of Delaware. The Trust is registered with the Commission as an investment company and has filed a registration statement on Form N-1A with the Commission.
In this proposed rule change, the Exchange proposes to permit the listing or continued listing of the Shares if the Funds revise their investment strategies to include additional instruments in their portfolios to implement their investment objectives.
As stated in the Prior Release, each Fund's investment objective is to seek long-term capital appreciation. The Prior Release states that each Fund seeks to achieve its investment objective by investing, under normal circumstances,
The Prior Release also states that each Subsidiary will invest in exchange-traded futures contracts linked to commodities (“Commodities Futures”) to provide its parent Fund with additional indirect exposure to the commodities markets. Each Fund's investment in its Subsidiary is designed to help the Fund obtain exposure to Commodities Futures returns in a
In this proposed rule change, the Funds seek the ability for the Funds and the Subsidiaries, as applicable, to also invest in a variety of other securities and instruments beyond those set forth in the Prior Release, as follows:
• Each Fund, which already may invest in ETFs, ETNs and Commodity Pools, seeks to also invest in: (i) Other investment companies,
• Each Subsidiary, which already may invest in Commodities Futures, now also seeks to invest in: (i) Exchange traded futures contracts on commodity indices, (ii) commodity-linked notes,
• In addition, each Fund may hold instruments that its respective Subsidiary is entitled to hold, and vice versa, to the extent consistent with federal tax requirements.
The Prior Release noted that all of the exchange-traded securities held by a Fund will be traded in a principal trading market that is a member of ISG or a market with which the Exchange has a comprehensive surveillance sharing agreement. The Funds propose to invest in Equity Securities, closed-end funds, ETFs, ETNs, Commodity Pools and non-U.S. investment companies that are not traded in a principal trading market that is a member of ISG or a market with which the Exchange has a comprehensive surveillance sharing agreement; however, not more than 10% of each Fund's investments in these investments (in the aggregate) will be invested in instruments that trade in markets that are not members of the ISG or that are not parties to a comprehensive surveillance sharing agreement with the Exchange.
These additional instruments are intended to support each Fund's principal investment strategy by providing each Fund with the flexibility to obtain additional exposure to the investment returns of the commodities markets within the limits of applicable federal tax requirements and without investing directly in physical commodities. Each Fund, either directly or through its respective Subsidiary, will only invest in those commodity-linked notes, OTC Swaps, Forwards, or other over-the-counter instruments that are based on the price of relevant Commodities Futures, as applicable, and tend to exhibit trading prices or returns that correlate with any Commodities Futures and that will further the investment objective of such Fund.
In conjunction with this proposed change to add various instruments to the Funds' principal investment strategies, the following information supplements or updates, as applicable, the information contained in the Prior Release. Except for these changes, all other facts presented and representations made in the Prior Release remain unchanged and in full effect.
As stated in the Prior Release, the Funds' administrator will calculate each Fund's net asset value (“NAV”) per Share as of the close of regular trading (normally 4:00 p.m., Eastern time (“E.T.”)) on each day Nasdaq is open for business. NAV per Share is calculated by taking the market price of a Fund's total assets, including interest or dividends accrued but not yet collected, less all liabilities, and dividing such amount by the total number of Shares outstanding. The Prior Release describes how various securities and instruments held by each Fund or its Subsidiary—including ETFs, ETNs and Commodities Futures—will be valued to calculate each Fund's NAV.
The Funds now represent that, in addition to the foregoing as set forth in the Prior Release: (i) Equity Securities, ETNs, and futures on commodity indices will be valued at the last sales price or the official closing price on the exchange where such securities principally trade; (ii) investment companies will be valued using such company's end of the day NAV per share, unless the shares are exchange-traded, in which case they will be valued at the last sales price or official closing price on the exchanges on which they primarily trade; (iii) Options generally will be valued at the closing price (and, if no closing price is available, at the mean of the last bid/ask quotations) generally from the exchange where such instruments principally
All other valuation procedures pertaining to the Funds, and as set forth in the Prior Release, are unchanged.
The Prior Release states that, on each business day, before commencement of trading in Shares in the Regular Market Session
In addition to the foregoing, the Funds will disclose on a daily basis on the Funds' Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding), the identity of the security or other asset or instrument underlying the holding, if any; for options, the option strike price; for Swaps, a description of the type of Swap; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge.
Intra-day price information on the exchange-traded assets held by the Fund and the Subsidiary, including the Equity Securities, ETNs, Options, exchange-traded investment companies (including closed-end funds) and exchange-traded futures contracts on commodity indices will be available via the quote and trade service of the respective exchanges on which they principally trade. Additionally, price information on Swaps, commodity-linked notes, Forwards and non-exchange traded investment companies will be available from major broker-dealer firms or through subscription services, such as Bloomberg, Markit and Thomson Reuters, which can be accessed by entities that have entered into an authorized participant agreement with the Trust and other investors.
First, as noted in the Prior Release, trading in the Shares will be subject to the existing trading surveillances, administered by both Nasdaq and also the Financial Industry Regulatory Authority (“FINRA”), on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
In addition to the foregoing: (i) FINRA, on behalf of the Exchange, will communicate as needed regarding trading information it can obtain relating to exchange-traded or centrally-cleared equity securities and assets held by a Fund or its Subsidiary, as applicable, which include exchange-traded Commodity-Related Assets and exchange-traded or centrally-cleared Commodity-Linked Instruments, with other markets and other entities that are members of the ISG; (ii) FINRA may obtain trading information regarding trading in exchange-traded equity securities and other assets held by each Fund and each Subsidiary, as applicable, from such markets and other entities; and (iii) the Exchange may obtain information regarding trading in exchange-traded equity securities and other assets held by each Fund and each Subsidiary from such markets and other entities (as long as such markets and other entities are members of ISG or have in place a comprehensive surveillance sharing agreement with the Exchange). The Exchange has a general policy prohibiting the distribution of material, non-public information by its employees.
Second, the Prior Release states that all of the exchange-traded equity securities held by a Fund will be traded in a principal trading market that is a member of the ISG or a market with which the Exchange has a comprehensive surveillance sharing agreement, and that with respect to Commodities Futures held indirectly through a Subsidiary, not more than 10% of the weight of such Commodities Futures, in the aggregate, shall consist of instruments whose principal trading market is not a member of the ISG or a market with which the Exchange does not have a comprehensive surveillance sharing agreement. The Funds now clarify that Options and commodity index futures will be subject to the same restrictions as Commodities Futures, and that Options and commodity index futures will be considered in the aggregate with Commodities Futures. Therefore, with respect to Commodities Futures, commodity index futures and Options, not more than 10% of the weight
Beyond the changes described above, there are no changes to any other information included in the Prior Release, and all other facts presented and representations made in the Prior Release remain true and in effect. The Trust confirms that each Fund will continue to comply with all initial and continued listing requirements under Nasdaq Rule 5735.
Nasdaq believes that the proposal is consistent with Section 6(b) of the Act in general, and Section 6(b)(5) of the Act in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will continue to be listed and traded on the Exchange pursuant to the initial and continued listing criteria in Nasdaq Rule 5735. The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by both Nasdaq and FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws and are adequate to properly monitor trading in the Shares in all trading sessions. In addition, paragraph (g) of Nasdaq Rule 5735 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material, non-public information regarding the open-end fund's portfolio. Each Fund's and its Subsidiary's investments will be consistent with such Fund's investment objective.
FINRA may obtain information via ISG from other exchanges that are members of ISG. In addition, the Exchange may obtain information regarding trading in the Shares, Equity Securities, Commodities Futures, ETFs, ETNs, and Commodity Pools held by each Fund or its Subsidiary, as applicable, from markets and other entities that are members of ISG, which includes securities and futures exchanges, or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, as noted in the Prior Release, the Exchange may obtain information from TRACE, which is the FINRA-developed vehicle that facilitates mandatory reporting of over-the-counter secondary market transactions in eligible fixed income securities. With respect to Commodities Futures held indirectly through a Subsidiary, not more than 10% of the weight of such Commodities Futures, in the aggregate, shall consist of instruments whose principal trading market is not a member of ISG or a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
Options and commodity index futures will be subject to the same restrictions as Commodities Futures, and Options and commodity index futures will be considered in the aggregate with Commodities Futures. Therefore, with respect to Commodities Futures, commodity index futures and Options, not more than 10% of the weight
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information will be publicly available regarding the Funds and the Shares, thereby promoting market transparency. Moreover, as noted in the Prior Release, the Intraday Indicative Value, available on the NASDAQ OMX Information LLC proprietary index data service will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Regular Market Session. On each business day, before commencement of trading in Shares in the Regular Market Session on the Exchange, each Fund will disclose on its Web site the Disclosed Portfolio of the Fund and the Subsidiary that will form the basis for such Fund's calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information for the Shares will be available via Nasdaq proprietary quote and trade services, as well as in accordance with the Unlisted Trading Privileges and the Consolidated Tape Association plans for the Shares. Intra-day price information on the exchange-traded assets held by a Fund and its Subsidiary, including the Equity Securities, ETFs, exchange traded investment companies (including closed-end funds) and exchange-traded futures contracts on commodity indexes will be available via the quote and trade service of the respective exchanges on which they primarily trade, as well as in accordance with the Unlisted Trading Privileges and the Consolidated Tape Association plans. Quotation and last sale information for any underlying Commodities will be available via the quote and trade service of their respective primary exchanges. Intra-day price information on the exchange-traded assets held by the Fund and the Subsidiary, including the Equity Securities, ETNs, Options, exchange-traded investment companies (including closed-end funds) and exchange-traded futures contracts on commodity indices will be available via the quote and trade service of the respective exchanges on which they principally trade. Additionally, price information on Swaps, commodity-linked notes, Forwards and non-exchange traded investment companies will be available from major broker-dealer firms or through subscription services, such as Bloomberg, Markit and Thomson Reuters, which can be accessed by entities that have signed authorized participant agreements with a Fund and other investors.
As noted above and in the Prior Release, the Funds' Web site will include a form of the prospectus for each Fund and additional data relating to NAV and other applicable
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the continued listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace.
For the above reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The instruments and asset types proposed to be added by this rule change, in connection with those approved in the Prior Order, are consistent with the instruments and asset types utilized by other actively managed funds in the marketplace. The investment strategies utilized by the Funds, however, remain different from other issues of Managed Fund Shares traded on the Exchange, and therefore provide investors with another choice of Managed Fund Shares. Moreover, the Exchange believes that the proposed changes will enhance competition among existing issues of Managed Fund Shares and will facilitate the trading of additional types of actively-managed exchange-traded funds, all to the benefit of investors and the marketplace.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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, Station Place, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 13, 2015, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-OCC-2015-009 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposal establishes new procedures to govern: (i) OCC's resizing of the clearing fund on a monthly basis pursuant to OCC Rule 1001(a) (“Monthly Clearing Fund Sizing Procedure”); and (ii) the addition of Financial Resources
According to OCC, under the Monthly Clearing Fund Sizing Procedure, OCC will continue to use its daily stress test exposures under simulated default scenarios (as described in the first sentence of OCC Rule 1001(a)) to calculate the size of the clearing fund and resize the clearing fund on the first business day of each month. However, instead of resizing the clearing fund based on the
OCC believes that the Monthly Clearing Fund Sizing Procedure provides a sound and prudent approach to ensure that it maintains adequate Financial Resources to protect against a default of a Clearing Member or Clearing Member Group presenting the largest exposure to OCC. By sizing the Base Amount of the clearing fund using the peak five-day rolling average over the preceding three month look-back period, rather than an average over the preceding month, OCC believes that the new resizing formula should be more responsive to sudden increases in exposure and less sensitive to short-run reductions in exposures that could inappropriately reduce the overall size of the clearing fund. OCC further asserts that the prudential margin of safety provides an additional buffer to absorb potential future exposures not previously observed during the look-back period. The Monthly Clearing Fund Sizing Procedure will be supplemented by the Financial Resource Monitoring and Call Procedure, which is described below, to provide further assurance that the Financial Resources are adequate to protect against such risk of loss.
According to OCC, under the Financial Resource Monitoring and Call Procedure, OCC will use the same daily idiosyncratic default calculation that is currently used under the Monthly Clearing Fund Sizing Procedure to monitor daily the adequacy of the Financial Resources to withstand a default by the Clearing Member or Clearing Member Group presenting the largest exposure under extreme but plausible market conditions.
In the case of a Clearing Member Group that causes the Exceedance Above Base Amount, the Exceedance Above Base Amount will be pro-rated among the individual Clearing Members that compose the Clearing Member Group based on each individual Clearing Member's proportionate share of the total risk for such Clearing Member Group as defined in OCC Rule 1001(b) (
Additionally, OCC will rely on OCC Rule 608 to preclude the withdrawal of such additional margin amount until all of the funds from the next monthly clearing fund resizing have been collected. Based on three years of back-testing data, OCC determined that a Margin Call Event would have occurred in 10 of the months during this period. During each of these 10 months, the maximum call amount would have been equal to $500 million.
To address this one observed instance, the Financial Resource Monitoring and Call Procedure will require OCC to increase the size of the clearing fund, if a Projected Draw exceeds 90% of the clearing fund (“Clearing Fund Intra-month Increase Event”), after applying any funds then on deposit with OCC from the applicable Clearing Member or Clearing Member Group pursuant to a Margin Call Event. The amount of such increase (“Clearing Fund Increase”) will be the greater of: (a) $1 billion; or (b) 125% of the difference between (i) the Projected Draw, as reduced by the deposits resulting from the Margin Call Event, and (ii) the clearing fund. Each Clearing Member's proportionate share of the Clearing Fund Increase will equal its proportionate share of the variable portion of the clearing fund for the month in question as calculated pursuant to OCC Rule 1001(b).
According to OCC, it will notify the Risk Committee, Clearing Members and appropriate regulatory authorities of the Clearing Fund Increase on the business day that the Clearing Fund Intra-month Increase Event occurs. OCC believes that this will ensure that OCC management maintains authority to address any potential Financial Resource deficiencies when compared to its Projected Draw estimates. The Risk Committee will then determine whether the Clearing Fund Increase is sufficient, and will retain authority under the Risk Committee charter to increase the Clearing Fund Increase or the intra-day margin call made pursuant to a Margin Call Event in its discretion. Clearing Members will be required to meet the call for additional clearing fund assets by 9:00 a.m. CT on the second business day following the Clearing Fund Intra-Month Increase Event. OCC believes that this collection process ensures that additional clearing fund assets are promptly deposited by Clearing Members following notice of a Clearing Fund Increase, while also providing Clearing Members with a reasonable period of time to source such assets. According to OCC, based on its back-testing results, after giving effect to the intra-day margin call in response to a Margin Call Event plus the prudential margin of safety, the Financial Resources would have been sufficient upon implementing the one instance of a Clearing Fund Intra-month Increase Event.
OCC believes the Financial Resource Monitoring and Call Procedure strikes a prudent balance between mutualizing the burden of requiring additional Financial Resources and requiring the Clearing Member or Clearing Member Group causing the increased exposure to bear such burden. In the event a Projected Draw exceeds 75% of the clearing fund, the Clearing Member or Clearing Member Group that triggers the exceedance will be assessed an intra-day margin call to address the increase in exposure. However, where a Projected Draw exceeds 90% of OCC's clearing fund, OCC determined that it should mutualize the burden of the additional Financial Resources at this threshold through a Clearing Fund Increase. OCC believes that this balance will provide OCC with sufficient Financial Resources without increasing the likelihood that its procedures, based solely on stress testing results, will cause a liquidity strain that could result in the default of a Clearing Member or Clearing Member Group.
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act, which requires the rules of a registered clearing agency be designed to, among other things, assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible, to remove impediments to and perfect the mechanism of a national system for the prompt and accurate clearance and settlement of securities transactions, and, in general, to protect investors and the public interest.
The Commission finds that the proposed rule change is consistent with Rule 17Ad-22(b)(3), promulgated under the Act,
On the basis of the foregoing, the Commission finds that the rule change is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 1, 2014, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-OCC-2014-811 (“Advance Notice”) pursuant to Section 806(e)(1) of the Payment, Clearing, and Settlement Supervision Act of 2010 (“Payment, Clearing and Settlement Supervision Act”)
The proposal establishes new procedures to govern: (i) OCC's resizing of the clearing fund on a monthly basis pursuant to OCC Rule 1001(a) (“Monthly Clearing Fund Sizing Procedure”); and (ii) the addition of Financial Resources
According to OCC, under the Monthly Clearing Fund Sizing Procedure, OCC will continue to use its daily stress test exposures under simulated default scenarios (as described in the first sentence of OCC Rule 1001(a)) to calculate the size of the clearing fund and resize the clearing fund on the first business day of each month. However, instead of resizing the clearing fund based on the
According to OCC, under the Financial Resource Monitoring and Call Procedure, OCC will use the same daily idiosyncratic default calculation that is currently used under the Monthly Clearing Fund Sizing Procedure to monitor daily the adequacy of the Financial Resources to withstand a default by the Clearing Member or Clearing Member Group presenting the largest exposure under extreme but plausible market conditions.
In the case of a Clearing Member Group that causes the Exceedance Above Base Amount, the Exceedance Above Base Amount will be pro-rated among the individual Clearing Members that compose the Clearing Member Group based on each individual Clearing Member's proportionate share of the total risk for such Clearing Member Group as defined in OCC Rule 1001(b) (
Additionally, OCC will rely on OCC Rule 608 to preclude the withdrawal of such additional margin amount until all of the funds from the next monthly clearing fund resizing have been collected. Based on three years of back-testing data, OCC determined that a Margin Call Event would have occurred in 10 of the months during this period. During each of these 10 months, the maximum call amount would have been equal to $500 million.
To address this one observed instance, the Financial Resource Monitoring and Call Procedure will require OCC to increase the size of the clearing fund, if a Projected Draw exceeds 90% of the clearing fund (“Clearing Fund Intra-month Increase Event”), after applying any funds then on deposit with OCC from the applicable Clearing Member or Clearing Member Group pursuant to a Margin Call Event. The amount of such increase (“Clearing Fund Increase”) will be the greater of: (a) $1 billion; or (b) 125% of the difference between (i) the Projected Draw, as reduced by the deposits resulting from the Margin Call Event, and (ii) the clearing fund. Each Clearing Member's proportionate share of the Clearing Fund Increase will equal its proportionate share of the variable portion of the clearing fund for the month in question as calculated pursuant to OCC Rule 1001(b).
According to OCC, it will notify the Risk Committee, Clearing Members and appropriate regulatory authorities of the Clearing Fund Increase on the business day that the Clearing Fund Intra-month Increase Event occurs. OCC believes that this will ensure that OCC management maintains authority to address any potential Financial Resource deficiencies when compared to its Projected Draw estimates. The Risk Committee will then determine whether the Clearing Fund Increase is sufficient, and will retain authority under the Risk Committee charter to increase the Clearing Fund Increase or the intra-day margin call made pursuant to a Margin Call Event in its discretion. Clearing Members will be required to meet the call for additional clearing fund assets by 9:00 a.m. CT on the second business day following the Clearing Fund Intra-Month Increase Event. OCC believes that this collection process ensures that additional clearing fund assets are promptly deposited by Clearing Members following notice of a Clearing Fund Increase, while also providing Clearing Members with a reasonable period of time to source such assets. According to OCC, based on its back-testing results, after giving effect to the intra-day margin call in response to a Margin Call Event plus the prudential margin of safety, the Financial Resources would have been sufficient upon implementing the one instance of a Clearing Fund Intra-month Increase Event.
OCC believes the Financial Resource Monitoring and Call Procedure strikes a prudent balance between mutualizing the burden of requiring additional Financial Resources and requiring the Clearing Member or Clearing Member Group causing the increased exposure to bear such burden. In the event a Projected Draw exceeds 75% of the clearing fund, the Clearing Member or Clearing Member Group that triggers the exceedance will be assessed an intra-day margin call to address the increase in exposure. However, where a Projected Draw exceeds 90% of OCC's clearing fund, OCC determined that it should mutualize the burden of the additional Financial Resources at this threshold through a Clearing Fund Increase. OCC believes that this balance will provide OCC with sufficient Financial Resources without increasing the likelihood that its procedures, based solely on stress testing results, will cause a liquidity strain that could result in the default of a Clearing Member or Clearing Member Group.
Although Title VIII does not specify a standard of review for an advance notice, the Commission believes that the stated purpose of Title VIII is instructive.
Section 805(a)(2) of the Payment, Clearing and Settlement Supervision Act
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Payment, Clearing and Settlement Supervision Act (“Clearing Agency Standards”).
The Commission believes that the proposal in this Advance Notice is designed to further the objectives and principles of Section 805(b) of the Payment, Clearing and Settlement Supervision Act.
The Commission believes that the proposal in this Advance Notice is consistent with Clearing Agency Standards, in particular, Rule 17Ad-22(b)(3) under the Exchange Act,
By using a peak five-day rolling average and extending the look-back period from one to three calendar months, the Monthly Clearing Fund Sizing Procedure should be more responsive than OCC's existing resizing formula to sudden increases in exposure and less sensitive to short-run reductions in exposure that could inappropriately reduce the overall size of the clearing fund. Furthermore, the prudential margin of safety, which is currently $1.8 billion, will provide an additional buffer to absorb potential future exposures that may not be observed during the look-back period. In addition, the Financial Resource Monitoring and Call Procedure will establish a process by which OCC will be able to respond to increases in exposure on an intra-month basis. In doing so, the Commission believes the Financial Resource Monitoring and Call Procedure should ensure that a balance is struck between mutualizing the burden of the additional financial resources across all Clearing Members, while also requiring the Clearing Member or Clearing Member Group causing the increased exposure to bear the burden.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 7039 (NASDAQ Last Sale Data Feed) with language regarding NASDAQ Last Sale (“NLS”) Plus (“NLS Plus”), a comprehensive data feed offered by NASDAQ OMX Information LLC.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to amend Rule 7039 by adding new section (d) regarding NLS Plus. NLS Plus allows data distributors to access last sale products offered by each of NASDAQ OMX's three equity exchanges. Thus, NLS Plus includes all transactions from all of NASDAQ OMX's equity markets, as well as FINRA/NASDAQ TRF data that is included in the current NLS product. In addition, NLS Plus features total cross-market volume information at the issue level, thereby providing redistribution of consolidated volume information from the securities information processors (“SIPs”) for Tape A, B, and C securities.
NASDAQ has offered NLS Plus since 2010 via NASDAQ OMX Information LLC. NASDAQ OMX Information LLC is a subsidiary of NASDAQ OMX Group, Inc., separate and apart from The NASDAQ Stock Market LLC. As such, NASDAQ OMX Information LLC redistributes last sale data that has been the subject of a proposed rule change filed with the Commission at prices that also have been the subject of a proposed rule change filed with the Commission. As discussed below, NASDAQ OMX Information LLC distributes no data that is not equally available to all market data vendors.
The primary purpose of NASDAQ OMX Information LLC is to combine publicly available data from the three filed last sale products of the NASDAQ OMX equity markets and from the network processors for the ease and convenience of market data users and vendors, and ultimately the investing public. In that role, the function of NASDAQ OMX Information LLC is analogous to that of other market data vendors, and it has no competitive advantage over other market data vendors. For example, NASDAQ OMX Information LLC receives data from the exchange that is available to other market data vendors, with the same information distributed to NASDAQ OMX Information LLC at the same time it is distributed to other vendors (that is, NASDAQ OMX Information LLC has neither a speed nor an information differential). Through this structure, NASDAQ OMX Information LLC performs precisely the same functions as Bloomberg, Thomson Reuters, and dozens of other market data vendors.
The contents of NLS Plus in large part mimic those of NLS set forth in NASDAQ Rule 7039. Currently, NLS in Rule 7039 consists of two separate data products containing last sale activity within the NASDAQ market and reported to the jointly-operated FINRA/NASDAQ TRF; these products are available via two separate data channels. First, as described in Rule 7039, the “NLS for NASDAQ” data product is a real-time data channel that provides real-time last sale information including execution price, volume, and time for executions occurring within the NASDAQ system as well as those reported to the FINRA/NASDAQ TRF. Second, the product known as “NLS for NYSE/NYSE MKT” provides real-time last sale information over a second data channel including execution price, volume, and time for NYSE- and NYSE MKT-securities executions occurring within the NASDAQ system as well as those reported to the FINRA/NASDAQ TRF. By contrast, the SIPs that provide “core” data consolidate last sale information from all exchanges and TRFs. Thus, NLS replicates a subset of the information provided by the SIPs. NASDAQ currently maintains several pricing models, for NLS, including an enterprise license. NLS Plus also includes comparable information from BX Last Sale (BX Rule 7039) and PSX Last Sale (NASDAQ OMX PSX Fees Chapter VIII).
The Exchange proposes to add NLS Plus to Rule 7039, which currently describes the NLS data feed offering, to fully reflect NLS Plus. As described more fully below, NLS Plus is a comprehensive data feed offered by NASDAQ OMX Information LLC that disseminates last sale data as well as consolidated volume of NASDAQ equity markets and the TRF in real-time, and consolidated volume for Tape A and Tape B securities on a 15-minute delayed basis. Similar to NLS, NLS Plus offers data for all U.S. equities via two separate data channels: The first data channel reflects NASDAQ, BX, and PSX trades with real-time consolidated volume for NASDAQ-listed securities; and the second data channel reflects NASDAQ, BX, and PSX trades with delayed consolidated volume for NYSE, NYSE MKT, NYSE Arca and BATS-listed securities.
In addition to last sale information, NLS Plus also disseminates the following data elements: Trade Price, Trade Size, Sale Condition Modifiers, Cumulative Consolidated Market Volume, End of Day Trade Summary, Adjusted Closing Price, IPO Information, and Bloomberg ID (together the “data elements”). NLS Plus also features and disseminates the following messages: Market Wide Circuit Breaker, Reg SHO Short Sale Price Test Restricted Indicator, Trading Action, Symbol Directory, Adjusted Closing Price, and End of Day Trade Summary (together the “messages”).
Consolidated volume reflects the consolidated volume at the time that the NLS Plus trade message is generated, and includes the volume for the issue symbol as reported on the consolidated market data feed. The consolidated volume is based on the real-time trades reported via the UTP Trade Data Feed (“UTDF”) and delayed trades reported via CTA. NASDAQ OMX calculates the real-time trading volume for its trading venues, and then adds the real-time trading volume for the other (non-NASDAQ OMX) trading venues as reported via the UTDF data feed. For non-NASDAQ-listed issues, the consolidated volume is based on trades reported via SIAC's Consolidated Tape System (“CTS”) for the issue symbol. The Exchange calculates the real-time trading volume for its trading venues, and then adds the 15-minute delayed trading volume for the other (non-NASDAQ OMX) trading venues as reported via the CTS data feed.
NLS Plus may be received by itself or in combination with NASDAQ Basic.
The Exchange believes that market data distributors may use the NLS Plus data feed to feed stock tickers, portfolio trackers, trade alert programs, time and sale graphs, and other display systems.
The Exchange also proposes two housekeeping changes. In the Rule 7039 title, the Exchange adds the phrase “and NASDAQ Last Sale Plus” to make it clear that the rule refers to NLS and NLS Plus. And in section (a), the Exchange adds the phrase “NASDAQ Last Sale” to make it clear that section (a) ([
With respect to latency, the path for distribution by the Exchange of NLS Plus is not faster than the path for distribution that would be used by a market data vendor to distribute an independently created NLS Plus-like product. As such, the proposed NLS Plus data feed is a data product that a competing market data vendor could create and sell without being in a disadvantaged position relative to the Exchange. In recognition that the Exchange is the source of its own market data and with BX and PSX being equity markets owned by NASDAQ OMX, the Exchange represents that the source of the market data it would use to create proposed NLS Plus is available to other vendors. In fact, the overwhelming majority of the data elements and messages
In order to create NLS Plus, the system creating and supporting NLS Plus receives the individual data feeds from each of the NASDAQ OMX equity markets and, in turn, aggregates and summarizes that data to create NLS Plus and then distribute it to end users. This is the same process that a competing market data vendor would undergo should it want to create a market data product similar to NLS Plus to distribute to its end users. A competing market data vendor could receive the individual data feeds from each of the NASDAQ OMX equity markets at the same time the system creating and supporting NLS Plus would for it to create NLS Plus. Therefore, a competing market data vendor could, as discussed, obtain the underlying data elements from the NASDAQ OMX equity markets on the same latency basis as the system that would be performing the aggregation and consolidation of proposed NLS Plus, and provide a similar product to its customers with the same latency they could achieve by purchasing NLS Plus from the Exchange. As such, the Exchange would not have any unfair advantage over competing market data vendors with respect to NLS Plus. Moreover, in terms of NLS itself, the Exchange would access the underlying feed from the same point as would a market data vendor; as discussed, the Exchange would not have a speed advantage. Likewise, NLS Plus would not have any speed advantage vis-à-vis competing market data vendors with respect to access to end user customers.
With regard to cost, upon approval of this NLS Plus proposal the Exchange will file a separate proposal with the Commission regarding fees, which would be designed to ensure that vendors could compete with the Exchange by creating a similar product as NLS Plus. The Exchange expects that the pricing will reflect the incremental cost of the aggregation and consolidation function for NLS Plus, and would not be lower than the cost to a vendor creating a competing product, including the cost of receiving the underlying data feeds. The pricing the Exchange would charge clients for NLS Plus would enable a vendor to receive the underlying data feeds and offer a similar product on a competitive basis and with no greater cost than the Exchange. For these reasons, the Exchange believes that vendors could readily offer a product similar to NLS Plus on a competitive basis at a similar cost.
As described in more detail below, the Exchange believes that the NLS Plus data offering benefits the public and investors and that the proposal is consistent with the Act.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The purpose of the proposed rule change is to add section (d) to Rule 7039 regarding the NLS Plus data offering. NASDAQ believes that the proposal facilitates transactions in securities, removes impediments to and perfects the mechanism of a free and open market and a national market system, and, in general, protects investors and the public interest by making permanent the availability of an additional means by which investors may access information about securities transactions, thereby providing investors with additional options for accessing information that may help to inform their trading decisions. Given that Section 11A the Act
NASDAQ notes that the Commission has recently approved a data product on several exchanges that is similar to NLS Plus, and specifically determined that the approved data product was consistent with the Act.
In adopting Regulation NMS, the Commission granted SROs and broker-dealers (“BDs”) 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. NASDAQ believes that its NLS Plus market data product is precisely the sort of market data product that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
NASDAQ will file a separate proposal regarding NLS Plus fees.
The Court in
Moreover, data products such as NLS Plus are a means by which exchanges compete to attract order flow. To the extent that exchanges are successful in such competition, they earn trading revenues and also enhance the value of their data products by increasing the amount of data they are able to provide. Conversely, to the extent that exchanges are unsuccessful, the inputs needed to add value to data products are diminished. Accordingly, the need to compete for order flow places substantial pressure upon exchanges to keep their fees for both executions and data reasonable.
The Exchange believes that, for the reasons given, the proposal is consistent with the Act.
NASDAQ 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, as amended. As is true of all NASDAQ's non-core data products, NASDAQ's ability to offer and price NLS Plus is constrained by: (1) Competition between exchanges and other trading platforms that compete with each other in a variety of dimensions; (2) the existence of
In addition, as described in detail above, NLS Plus competes directly with a myriad of similar products and potential products of market data vendors. NASDAQ OMX Information LLC was constructed specifically to establish a level playing field with market data vendors and to preserve fair competition between them. Therefore, NASDAQ OMX Information LLC receives NLS, BX Last Sale, and PSX Last Sale from each NASDAQ-operated exchange in the same manner, at the same speed, and reflecting the same fees as for all market data vendors. Therefore, NASDAQ Information LLC has no competitive advantage with respect to these last sale products and NASDAQ commits to maintaining this level playing field in the future. In other words, NASDAQ will continue to disseminate separately the underlying last sale products to avoid creating a latency differential between NASDAQ OMX Information LLC and other market data vendors, and to avoid creating a pricing advantage for NASDAQ OMX Information LLC.
NLS Plus joins the existing market for proprietary last sale data products that is currently 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. Similarly, with respect to the FINRA/NASDAQ TRF data that is a component of NLS and NLS Plus, allowing exchanges to operate TRFs has permitted them to earn revenues by providing technology and data in support of the non-exchange segment of the market. This revenue opportunity has also resulted in fierce competition between the two current TRF operators, with both TRFs charging extremely low trade reporting fees and rebating the majority of the revenues they receive from core market data to the parties reporting trades.
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price, and distribution of its data products. Without trade executions, exchange data products cannot exist. Moreover, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (
An exchange's BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD 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 BD 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 BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD's trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable.
Similarly, in the case of products such as NLS Plus that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail BDs, 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. Exchanges,
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. NASDAQ pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data.
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. Such regulation is unnecessary because an “excessive” price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including eleven SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE MKT, NYSE Arca, and BATS/Direct Edge.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple BDs' production of proprietary data products. The potential sources of proprietary products are virtually limitless. Notably, the potential sources of data include the BDs that submit trade reports to TRFs and that have the ability to consolidate and distribute their data without the involvement of FINRA or an exchange-operated TRF.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and NYSE Arca did before registering as exchanges by publishing proprietary book data on the internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Indeed, in the case of NLS Plus, the data provided through that product appears both in (i) real-time core data products offered by the SIPs for a fee, (ii) free SIP data products with a 15-minute time delay, and (iii) individual exchange data products, and finds a close substitute in last-sale products of competing venues.
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, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and BATS/Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs 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. In Europe, Cinnober aggregates and disseminates data from over 40 brokers and multilateral trading facilities.
In the case of TRFs, the rapid entry of several exchanges into this space in 2006-2007 following the development and Commission approval of the TRF structure demonstrates the contestability of this aspect of the market.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products
The competitive nature of the market for products such as NLS Plus is borne out by the performance of the market. In May 2008, the internet portal Yahoo! began offering its Web site viewers real-time last sale data (as well as best quote data) provided by BATS. In response, in June 2008, NASDAQ launched NLS, which was initially subject to an “enterprise cap” of $100,000 for customers receiving only one of the NLS products, and $150,000 for customers receiving both products. The majority of NASDAQ's sales were at the capped level. In early 2009, BATS expanded its offering of free data to include depth-of-book data. Also in early 2009, NYSE Arca announced the launch of a competitive last sale product with an enterprise price of $30,000 per month. In response, NASDAQ combined the enterprise cap for the NLS products and reduced the cap to $50,000 (
In this environment, 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'.”
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
The Credit Rating Agency Reform Act of 2006 (Pub. L. 109-291) (“Rating Agency Act”), enacted on September 29, 2006, defines the term “nationally recognized statistical rating organization,” or “NRSRO” and provides authority for the Commission to implement registration, recordkeeping, financial reporting, and oversight rules with respect to registered credit rating agencies. The Rating Agency Act added a new Section 15E, “Registration of Nationally Recognized Statistical Rating Organizations” (15 U.S.C. 78o-7) to the Exchange Act. Exchange Act Section 15E(h)(2) provides the Commission with authority to prohibit, or require the management and disclosure of, any potential conflict of interest relating to the issuance of credit ratings by an NRSRO (15 U.S.C. 78o-7(h)(2)).
The Commission adopted, and subsequently amended, Rule 17g-5 pursuant, in part, to Section 15E(h)(2) of the Exchange Act.
On August 27, 2014, the Commission adopted amendments to Rule 17g-5.
Second, the Commission added paragraph (c)(8) to Rule 17g-5 to prohibit an NRSRO from issuing or maintaining a credit rating where a person within the NRSRO who participates in determining or monitoring the credit rating, or developing or approving procedures or methodologies used for determining the credit rating, including qualitative and quantitative models, also: (1) Participates in sales or marketing of a product or service of the NRSRO or a product or service of an affiliate of the NRSRO; or (2) is influenced by sales or marketing considerations.
Third, the Commission added paragraph (f) to Rule 17g-5, which provides that upon written application by an NRSRO the Commission may exempt, either unconditionally or on specified terms and conditions, the NRSRO from paragraph (c)(8) of Rule 17g-5 if the Commission finds that due to the small size of the NRSRO it is not appropriate to require the separation of the production of credit ratings from sales and marketing activities and the exemption is in the public interest.
The collection of information obligation imposed by Rule 17g-5 is mandatory for credit rating agencies that are applying to register or are registered with the Commission as NRSROs. Registration with the Commission as an NRSRO is voluntary.
Paragraph (a)(3) of Rule 17g-5 requires disclosures by NRSROs on a transaction by transaction basis. The Commission estimates that the total number of structured finance ratings issued by all NRSROs in a given year is approximately 2,436 and that it would take 1 hour per transaction to make the information publicly available. The Commission therefore estimates that the corresponding annual disclosure burden for NRSROs is approximately 2,436 hours industry-wide.
Paragraph (a)(3) of Rule 17g-5 also requires arrangers to disclose certain information. The Commission previously estimated that there are approximately 200 arrangers subject to the rule. The Commission estimates that it would take approximately 300 hours to develop a system, as well as the policies and procedures, for the disclosures required by Rule 17g-5. In the Adopting Release, the Commission estimated that there are approximately 336 issuers, sponsors, or underwriters of asset-backed securities. Therefore, the one-time burden for the additional 136 respondents is approximately 40,800 hours. The Commission therefore estimates that, over a three-year period, the total industry-wide one-time burden would be approximately 13,600 hours per year when annualized over three years.
Paragraph (a)(3) of Rule 17g-5 also requires disclosures by arrangers on a transaction by transaction basis. The Commission estimates that 336 arrangers would arrange approximately 20 new transactions per year and that it would take 1 hour per transaction to make the information publicly available, resulting in a total annual disclosure burden of approximately 6,720 hours.
Paragraph (a)(3) of Rule 17g-5 also requires disclosure of information by arrangers on an ongoing basis that is used by an NRSRO to undertake credit rating surveillance on the structured finance product. The Commission estimates this disclosure would be required for approximately 125 transactions a month, and it would take each respondent approximately 0.5 hours per transaction to disclose the information. Therefore, the Commission estimates that it would take each respondent approximately 750 hours on an annual basis to disclose such information, for a total aggregate annual disclosure burden of 252,000 hours.
Paragraph (e) of Rule 17g-5 requires NRSROs to submit an annual certification to the Commission. The Commission estimates that it would take each NRSRO approximately 2 hours to complete the certification, resulting in a total industry-wide annual reporting burden for 10 NRSROs of 20 hours.
New paragraph (a)(3)(iii)(E) of Rule 17g-5 may require NRSROs to redraft the agreement templates they use with respect to obtaining representations from issuers, sponsors, or underwriters as required under Rule 17g-5. The Commission estimates that an NRSRO will spend approximately two hours on a one-time basis to redraft these templates with respect to each issuer, sponsor, or underwriter, for a total industry-wide one-time disclosure burden of approximately 6,720 hours. The Commission therefore estimates that the total one-time disclosure burden to redraft the templates would
New paragraph (a)(3)(iii)(E) of Rule 17g-5 also requires issuers, sponsors, and underwriters to post on the Rule 17g-5 Web sites any executed Form ABS Due Diligence-15E delivered by a person employed to provide third-party due diligence services. The Commission estimates that issuers, sponsors, and underwriters will need to post approximately 715 Forms ABS Due Diligence-15E on Rule 17g-5 Web sites per year (in addition to the information that is already posted to the Web sites). The Commission estimates that it will take the issuer, sponsor, or underwriter approximately ten minutes to upload each form and post it to the Web site, for a total industry-wide annual disclosure burden of approximately 119 hours.
As a consequence of the new absolute prohibition in paragraph (c)(8) of Rule 17g-5, the Commission believes that an NRSRO will need to update the written policies and procedures to address and manage conflicts of interest the NRSRO must establish, maintain, and enforce under Section 15E(h) of the Exchange Act and Rule 17g-5. The Commission estimates that updating the conflicts of interest policies and procedures would take an NRSRO an average of approximately 100 hours, for an industry-wide one-time reporting burden of approximately 1,000 hours. In addition, Exhibit 7 to Form NRSRO requires an NRSRO to provide a copy of the written policies and procedures in the exhibit. Paragraph (e) of Rule 17g-1 requires an NRSRO to promptly file with the Commission an update of its registration on Form NRSRO when information on the form is materially inaccurate. The update of registration must be filed electronically on the Commission's EDGAR system. The Commission estimates that it would take an NRSRO an average of approximately twenty-five hours on a one-time basis to prepare and file the update of registration to account for the update of the NRSRO's written policies and procedures to address and manage conflicts of interest, for an industry-wide one-time reporting burden of approximately 250 hours. The Commission therefore estimates that the total one-time reporting burden to update the conflicts of interest policies and procedures and to prepare and file an update of registration to account for the update of the NRSRO's written policies and procedures would be 1,250 hours, or approximately 417 hours per year when annualized over three years.
Finally, paragraph (f) of Rule 17g-5 permits an NRSRO to apply for an exemption from the prohibited conflict under paragraph (c)(8) of Rule 17g-5. The Commission estimated that an NRSRO would likely spend an average of approximately 150 hours to draft and submit the application to the Commission. If all 10 NRSROs apply for an exemption, this would result in a one-time industry-wide reporting burden of 1,500 hours, or approximately 500 hours per year when annualized over 3 years.
Accordingly, the total estimated burden associated with Rule 17g-5 is 50,270 hours on a one-time basis (40,800 + 6,720 + 1,250 +1,500 = 50,270) and 261,295 hours on an annual basis (2,436 + 6,720 + 252,000 + 20 +119 = 261,295).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of West Virginia (FEMA-4219-DR), dated 05/14/2015.
Submit completed loan applications to: U.S. Small Business, Administration Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 05/14/2015, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14317B and for economic injury is 14318B.
This document replaces and supersedes “Line of Succession Designation No. 1-A, Revision 34.”
Line of Succession Designation No. 1-A, Revision 35: Effective immediately,
(1) Chief of Staff;
(2) General Counsel;
(3) Chief Operating Officer;
(4) Associate Administrator, Office of Disaster Assistance;
(5) Regional Administrator for Region 8;
(6) Regional Administrator for Region 5; and
(7) Regional Administrator for Region 10.
(b) Notwithstanding the provisions of SBA Standard Operating Procedure 00 01 2, “absence from the office,” as used in reference to myself in paragraph (a) above, means the following:
(1) I am not present in the office and cannot be reasonably contacted by phone or other electronic means, and there is an immediate business necessity for the exercise of my authority; or
(2) I am not present in the office and, upon being contacted by phone or other electronic means, I determine that I cannot exercise my authority effectively without being physically present in the office.
(c) An individual serving in an acting capacity in any of the positions listed in subparagraphs (a)(1) through (7), unless designated as such by the Administrator, is not also included in this Line of Succession. Instead, the next non-acting incumbent in the Line of Succession shall serve as Acting Administrator.
(d) This designation shall remain in full force and effect until revoked or superseded in writing by the Administrator, or by the Deputy Administrator when serving as Acting Administrator.
(e) Serving as Acting Administrator has no effect on the officials listed in subparagraphs (a)(1) through (7), above, with respect to their full-time position's authorities, duties and responsibilities (except that such official cannot both recommend and approve an action).
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Alabama dated 05/15/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14308 B and for economic injury is 14309 0.
The States which received an EIDL Declaration # are Alabama, Florida, Georgia.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including lists of the exhibit objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice of Proposed Intern Program.
The Department of State administers the Exchange Visitor Program pursuant to the Mutual Educational and Cultural Exchange Act of 1961 (Pub. L. 87-256) as amended, 22 U.S.C. 2451,
The Intern category is one of 15 categories under the Exchange Visitor Program. The purpose of the internship program is to provide foreign nationals who are currently enrolled full-time and pursuing studies at a degree- or certificate-granting post-secondary academic institution or graduated from such an institution no more than 12 months prior to their exchange visitor program begin date a period of work-based learning to allow them to develop practical skills that will enhance their future careers. Bridging the gap between formal education and practical work experience and gaining substantive cross-cultural experience are major goals in educational institutions around the world. By providing training opportunities for current foreign students and recent foreign graduates at formative stages of their development, the U.S. Government will build partnerships, promote mutual understanding, and develop networks for relationships that will last through generations as these foreign nationals move into leadership roles in a broad range of occupational fields in their own societies.
On March 16, 2015, Assistant Secretary of State for Educational and Cultural Affairs Evan Ryan and Under Secretary for North American Affairs for the Government of Mexico Sergio Alcocer signed a Memorandum of Understanding to establish the U.S.-Mexico Intern Program for four years. This new effort is intended to increase professional and educational opportunities for youth in both countries. The U.S.-Mexico Intern Program advances President Obama's
To support this Program, which will be implemented through the Exchange Visitor Program, the Department of State, Bureau of Educational and Cultural Affairs (ECA), Office of Private Sector Exchange (EC) wishes to collaborate with currently designated intern sponsors as well as other interested entities to provide Mexican citizens with internships and practical training in the occupational categories of Management, Business, Commerce and Finance; Public Administration and Law; Information Media and Communications; and The Sciences, Engineering, Architecture, Mathematics, and Industrial occupations. This type of immersion creates endless benefits for the individual and for understanding between the people of Mexico and the people of the United States.
ECA/EC is prepared to authorize separate designations to current intern sponsors as needed to support the U.S.-Mexico Intern Program. Beginning June 1, the Department intends to provide to currently designated intern sponsors the opportunity to submit designation applications (Form DS-3036) in the occupational fields of Management, Business, Commerce and Finance; Public Administration and Law; Information Media and Communications; and The Sciences, Engineering, Architecture, Mathematics, and Industrial occupations. The designation will be for a period of two years, after which time the sponsor will be required to submit an application for redesignation per 22 CFR 62.7.
Interested entities that do not hold an intern designation under the Exchange Visitor Program should follow the designation process set forth at 22 CFR 62.5, taking care to identify the specified occupational fields outlined in this Notice. Applicants are encouraged to consult the
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Robin J. Lerner, Deputy Assistant Secretary for Private Sector Exchange, U.S. Department of State, SA-5, Floor 5, 2200 C Street NW., Washington, DC 20522; or email at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of the Legal Adviser, U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505, telephone (202-632-6471), or email at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Tennessee Valley Authority.
Notice of Intent.
This notice of intent is provided in accordance with the Council on Environmental Quality's regulations (40 CFR parts 1500-1508) and Tennessee Valley Authority's (TVA) procedures implementing the National Environmental Policy Act (NEPA). TVA intends to prepare an environmental impact statement (EIS) to address the continued disposal of Coal Combustion Residuals (CCR) from the Bull Run Fossil Plant (BRF).
To ensure consideration, comments on the scope of the EIS must be postmarked or emailed no later than July 6, 2015.
Written comments on the scope of the
Other project related questions should be sent to Myra Ireland, Senior Strategic Communications Partner, Communications, Tennessee Valley Authority, 1101 Market Street, Mail Stop LP 5B, Chattanooga, Tennessee 37402 or by email at
TVA operates the nation's largest public power system, producing 4 percent of all the electricity in the nation. TVA provides electricity to most of Tennessee and parts of Virginia, North Carolina, Georgia, Alabama, Mississippi, and Kentucky. It serves about 9 million people in this seven-state region through 155 power distributors and 57 directly served large industries and federal facilities. The TVA Act requires the TVA power system to be self-supporting and operated on a nonprofit basis, and directs TVA to sell power at rates as low as feasible.
TVA is in the process of converting its handling of CCR from wet systems to dry systems across its coal-fired system. In September 2012, TVA decided to construct a mechanical dewatering facility at BRF. This facility is currently under construction and will allow TVA to manage bottom ash and gypsum using a dry stack basis. Fly ash generated at BRF is already being handled and stored on a dry basis. TVA needs to plan for the future management of material since existing storage capacity for dry stack CCRs at BRF is limited.
TVA proposes to expand its capacity for managing CCRs from BRF by constructing a new dry storage area on TVA property adjacent to BRF. BRF has state-of-the-art air pollution controls and is one of TVA's coal plants that is planned to continue to operate in the future. Construction of a new CCR dry storage area will provide additional CCR management capacity enabling TVA to continue operations at BRF. This proposal would be consistent with TVA's voluntary commitment to convert wet CCR management systems to dry systems. This also would help TVA comply with the U.S. Environmental Protection Agency's (EPA) recently issued Coal Combustion Residuals Rule.
This EIS will address alternatives that have reasonable prospects of providing a solution to the disposal of CCRs generated from BRF. TVA has determined that BRF has limited
No decision has been made about CCR disposal beyond the current available onsite capacity. TVA is preparing this EIS to inform decision makers, other agencies, and the public about the potential for environmental impacts associated with a decision to dispose of CCR generated from BRF. The draft EIS will be made available for public comment. In making its final decision, TVA will consider the analyses in this EIS and substantive comments that it receives. A final decision on proceeding with construction and operation will depend on a number of factors, including the results of the EIS, engineering and risk evaluations, and financial considerations.
This EIS will analyze potential impacts on the quality of the human and natural environment resulting from disposal of CCRs through the construction and operation of a new CCR storage area, utilizing existing permitted sites, and other reasonable alternatives. The impact analyses will include, but are not necessarily limited to:
• Water resources (surface water, groundwater quality, and use);
• vegetation;
• wildlife;
• aquatic ecology;
• endangered and threatened species;
• floodplains and wetlands;
• geology;
• land use;
• transportation;
• recreational and managed areas;
• visual resources;
• archaeological and historic resources;
• solid and hazardous waste;
• public health and safety;
• noise;
• air quality and climate change; and
• socioeconomics and environmental justice.
These and other important issues identified during the scoping process will be addressed as appropriate in the EIS.
This EIS is being prepared to provide the public an opportunity to comment on TVA's assessment of the potential environmental impacts of constructing and operating a new CCR storage area or utilizing an existing permitted site for the disposal of CCR from BRF. Applicable regulations require an early and open process for deciding what should be discussed in an EIS. Known as “scoping,” this process involves requesting and using comments from the public, interested agencies, and recognized Native American tribes to help identify the issues and alternatives that should be addressed in the EIS, as well as the temporal and geographic coverage of the analyses.
The public is invited to submit comments on the scope of this EIS no later than the date given under the
After consideration of the comments received during this scoping period, TVA will develop and distribute a document that will summarize public and agency comments that were received and identify the issues and alternatives to be addressed in the EIS and identify the schedule for completing the EIS process. Following analysis of the issues, TVA will prepare a draft EIS for public review and comment. Notice of availability of the draft EIS will be published by the U.S. Environmental Protection Agency in the
Office of the United States Trade Representative.
Notice; Correction.
On Tuesday, May 12, 2015 (80 FR 27225), the Office of the United States Trade Representative (“USTR”) published a notice titled WTO Dispute Settlement Proceeding Regarding Certain Measures Providing Export-Contingent Subsidies to Enterprises in Several Industrial Sectors in China. Subsequent to the publication of that notice, USTR discovered an error in the published notice. This notice corrects that error.
This correction is effective immediately.
Arthur Tsao, Assistant General Counsel, Office of the United States Trade Representative, (202) 395-3150.
On page 27225, make the following correction: In the
Federal Aviation Administration (FAA), DOT.
Request for public comments.
Under the provisions of Title 49, U.S.C. Section 47153(d), notice is being given that the FAA is considering a request from Fergus County, MT, and the City of Lewistown, MT, to waive the surplus property requirements for approximately 5.82 acres of airport property located at Lewistown Municipal Airport, in Lewistown, MT.
Approximately 3.43 acres of the subject parcel is currently part of the
Comments must be received on or before June 22, 2015.
Send comments on this document to Mr. Steve Engebrecht at the Federal Aviation Administration, 2725 Skyway Drive, Suite 2, Helena, MT, 59601, Telephone 406-449-5271.
Documents are available for review by appointment by contacting Mr. Steve Engebrecht, Telephone 406-449-5271 or by contacting Mr. Jason Garwood, Federal Aviation Administration, 2725 Skyway Drive, Suite 2, Helena, MT 59601, Telephone 406-449-5271.
Federal Railroad Administration (FRA), United States Department of Transportation (DOT).
Notice of intent to grant Buy America waiver.
FRA is issuing this notice to advise the public that it intends to grant the Long Island Rail Road (LIRR), a subsidiary of the Metropolitan Transportation Authority, a waiver from FRA's Buy America requirement under 49 U.S.C. 24405(a)(2)(B) for the purchase of seven (7) turnouts manufactured by VAE Nortrak North America, Inc. at its plant in Birmingham, Alabama, for use in the LIRR North East Corridor Congestion Relief Project at Harold Interlocking. The turnouts will contain four components (ZU1-60 steel left and right switch point rail sections and Schwihag roller assemblies and plates) not produced in the U.S. The roller assemblies and plates are manufactured in Switzerland, and the ZUl-60 steel switch point rail sections are manufactured in Austria. The foreign material comprises approximately 11.9 percent of the turnouts' $3.1 million cost or approximately $367,000. FRA believes a waiver is appropriate under 49 U.S.C. 24405(a)(2)(B) for the ZUI-60 steel switch point rail sections and roller assemblies and plates because domestically-produced components meeting the specific needs of LIRR are not currently “produced in sufficient and reasonably available amount or are not of a satisfactory quality.”
Written comments on FRA's determination to grant LIRR's Buy America waiver request should be provided to the FRA on or before May 26, 2015.
Please submit your comments by one of the following means, identifying your submissions by docket number FRA-2012-0033. All electronic submissions must be made to the U.S. Government electronic site at
(1)
(2)
(3)
(4)
Instructions: All submissions must make reference to the “Federal Railroad Administration” and include docket number FRA-2012-0033. Due to security procedures in effect since October 2001, mail received through the U.S. Postal Service may be subject to delays. Parties making submissions responsive to this notice should consider using an express mail firm to ensure the prompt filing of any submissions not filed electronically or by hand. Note that all submissions received, including any personal information therein, will be posted without change or alteration to
Mr. John Johnson, Attorney-Advisor, FRA Office of Chief Counsel, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590, (202) 493-0078,
The letter granting LIRR's request is quoted below:
LIRR amended its request because it determined that an alternative turnout design that Union Pacific railroad is using could potentially provide LIRR with a 100-percent FRA Buy America compliant turnout for future use at Harold Interlocking. However, LIRR asserts that an alternative design will require significant work before LIRR can integrate it into LIRR's infrastructure, including use for Harold Interlocking. This work includes development of a new configuration; preparation of shop drawings; and preparation, review and
FRA believes a waiver is appropriate under 49 U.S.C. 24405(a)(2)(B) for the ZUI-60 steel switch point rail sections and roller assemblies and plates because domestically-produced components meeting the specific needs of LIRR for this application are not currently “produced in sufficient and reasonably available amount or are not of a satisfactory quality.” Both FRA and LIRR have conducted significant outreach to find 100-percent compliant turnouts. LIRR issued two competitive solicitations for the Turnouts and received no Buy America compliant bids. LIRR also conducted extensive market research utilizing a previous scouting report relating to turnout components from a previous FRA waiver for the same components. In conducting that research, LIRR contacted seven potential manufacturers. None produced the needed turnout components as designed.
On September 19, 2014, FRA provided public notice of this waiver request and a 15-day opportunity for comment on its Web site. FRA also emailed notice to over 6,000 persons who have signed up for Buy America notices through “GovDelivery.” See
Moreover, although a future design capable of using domestic components may be possible, FRA concludes that the seven (7) turnouts are not reasonably available because the time required to design, test, and competitively procure those turnouts would likely cause at least a one year delay in completing the overall project, preventing the Harold Interlocking Project from being completed by September 30, 2017 (the deadline for the expenditure of Federal funds awarded under the American Recovery and Reinvestment Act of 2009). Thus, FRA grants LIRR's request for the initial seven (7) Turnouts.
This waiver applies only to the ZUI-60 steel switch point rail sections and Schwihag roller assemblies and plates as manufactured into the initial seven (7) Turnouts installed in the Harold Interlocking Project. We will not grant any future requests for waivers without a specific showing that a significant good faith effort to obtain domestic sources for these components has taken place but failed.
Pursuant to 49 U.S.C. 24405(a)(4), FRA will publish this letter granting LIRR's request in the
Questions about this letter can be directed to, John Johnson, Attorney-Advisor, at
Maritime Administration, Department of Transportation.
Notice.
This notice serves to inform interested parties and the public of the Maritime Administration's (MARAD) new policy for the issuance of Merchant Marine medals, decorations, citations, and the donation or loan of Merchant Marine flags. Consistent with Public Law 84-759, 46 CFR part 350, and upon analysis and review of established criteria, the Maritime Administration will issue certain awards, and/or donate or loan Merchant Marine flags, for the purpose of honoring the historic and or continuing contributions of Merchant Mariners to the United States. This policy updates MARAD procedures to implementing regulations 46 CFR part 350 by defining the role of the Merchant Marine Awards and Flags Committee, and articulating the criteria for awards and other official recognition.
This policy is effective upon publication in the
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 contact Bill Kurfehs, Office of Sealift Support, Maritime Administration, at (202) 366-2318. You may send mail to Mr. Kurfehs at Maritime Administration, 1200 New Jersey Avenue SE., MAR 630, Washington, DC 20590-0001. You may send electronic mail to
The promotion of the United States Merchant Marine is a central mission of MARAD. The Merchant Marine Act of 1936 was enacted to promote a well-equipped and efficient merchant marine fleet owned and operated by United States citizens and supported by domestic shipbuilding and repair facilities.
It is central to MARAD's promotional mission to encourage citizens of the United States to join the United States Merchant Marine and to see that these individuals are trained to operate the vessels of the United States. To this end, MARAD operates the United States Merchant Marine Academy, supports and helps fund training at State Maritime Academies, provides certain property to support nonprofit and other maritime training institutions, and generally provides maritime training to citizens of the United States.
Pursuant to 46 U.S.C. Chapter 519, authority also has been given to MARAD to provide Merchant Marine Awards. Such awards may be for individual acts or service in the Merchant Marine, for vessels and crews participating in outstanding or gallant action, certificates for civilian service, and for flags and grave markers.
By this policy, MARAD will act to recognize the role of the Merchant Mariners of the United States in providing for the national defense. Recognizing the contributions, value, and sacrifices of Merchant Mariners advances MARAD's mission of ensuring that new individuals will become Merchant Mariners and that those capabilities will be available to address the Nation's needs in the future. This recognition will remind the public of the hard work and dedication of the Merchant Mariners of the United States and in doing so promote the interests and mission of MARAD; particularly recruiting and maintaining a vital Merchant Marine workforce to ensure the stability and maintenance of the United States Merchant Marine.
This policy describes the process through which the Maritime Administration (MARAD) will exercise its authority under Public Law 84-759, 46 CFR part 350 to issue certain Merchant Marine awards.
The Merchant Marine Awards and Flags Committee is established to make recommendations to the Maritime Administrator for the issuance of Merchant Marine medals, decorations, and citations. The committee is also established to make recommendations to the Maritime Administrator to donate or loan Merchant Marine flags to qualifying organizations.
1. Receive nominations, through the Director, Office of Ship Operations, from any individual or entity, including individual members of the Committee, that properly addresses award evaluation criteria; and
2. Review nominations and make recommendations to the Maritime Administrator with respect to giving or loaning Merchant Marine flags to any qualifying organization and the award of any awards, medals, decorations, etc., authorized to be issued by the Maritime Administration (MARAD) by Public Law 84-759, and 46 CFR part 350.
1. Gallant Ship Unit Citation Award may be awarded to any United States vessel or to any foreign vessel (merchant, Coast Guard, Navy, or other), crew of that ship or other individuals or organizations participating in outstanding or gallant action in marine disasters or other emergencies for the purpose of saving life or property when the following circumstances are present:
(a) The vessel itself should move to the rescue and not be simply the platform from which crew members perform a rescue operation;
(b) The operation should encompass the maneuvers of the vessel and a substantial part of the personnel;
(c) The operation should involve either the use of the lifeboats by the crew taking to the water to effect a rescue with the vessel in some danger; or the vessel itself, by reason of perilous circumstances, should be in considerable danger;
(d) The conditions should be such that danger to the vessel or the lifeboat or the crew members is present; and
(e) The operation of the ship, its equipment, and personnel should favorably reflect efficiency, discipline and expertness.
2. Merchant Marine Meritorious Service Medal may be awarded to any person serving in the U.S. Merchant Marine for meritorious act, conduct or service in line of duty when the following circumstances are present:
(a) A Master of a U.S. merchant ship (without separate action) when that vessel is granted the Gallant Ship Award;
(b) An act of heroism, bravery, devotion to duty involving extreme danger (actual or perceived);
(c) The act, if it involves lifesaving, should be generally one performed while the vessel is at sea and not in a harbor, at the dock, or otherwise idle;
(d) The act may be at sea or in port if it involves an effort directed toward saving the vessel or the cargo; and
(e) The act should be one not directly entitling the individual to other medals such as the Carnegie Medal, the Coast Guard Medal for Lifesaving, etc. Merchant Marine Distinguished Service Medal may be awarded to any person serving in the U.S. Merchant Marine who distinguished himself or herself by outstanding act, conduct, or valor beyond the line of duty when the following circumstances are present:
(f) Extreme peril to the life or safety of the individual attempting the rescue action;
(g) It must be considered as going beyond the call of duty;
(h) It must involve the activity of the Merchant Marine so that it is distinguished from a saving of life or property where the vessel is solely a platform from which the individual moved or upon which the individual acted; and
(i) The accomplishment or the attempt must involve human lives or something of considerable worth either actual or considered so in the mind of the individual performing the action.
3. The Mariners Medal is awarded to a mariner who, while serving from December 7, 1941 and July 25, 1947, was wounded or suffered physical injures as result of an act of an enemy of the United States.
4. For World War II mariners who sailed in various war zones:
(a) The Atlantic War Zone Medal and bar are awarded for service in the Atlantic war zone, including the North Atlantic, South Atlantic, Gulf of Mexico, Caribbean, Barents Sea and the Greenland Sea, during the period from December 7, 1941 to November 8, 1945;
(b) The Mediterranean-Middle East War Zone Medal and bar are awarded for service in the zone including the Mediterranean Sea, Red Sea, Arabian Sea and the Indian Ocean west of 80 degrees east longitude, during the period from December 7, 1941 to November 8, 1945;
(c) The Pacific War Zone Medal and bar are awarded for service in the Pacific War Zone, including the North Pacific, South Pacific and the Indian Ocean east of 80 degrees east longitude during the period from December 7, 1941 to March 2, 1946;
(d) The Merchant Marine Combat Bar is awarded to Merchant Mariners who served on a vessel which at the time of such service was attacked or damaged by an instrumentality of war from December 7, 1941 to July 25, 1947. A star is attached if the mariner was forced to abandon ship. For each additional abandonment, a star is added;
(e) The Victory Medal with bar are awarded to members of the crew of vessels who served for 30 days or more during the period from December 7, 1941 to September 3, 1945;
(f) The Honorable Service Button is awarded to members of crews of vessels who served for 30 days during the period from December 7, 1941 to September 3, 1945;
(g) The Merchant Marine Emblem is an identifying insignia that was issued to active Merchant Mariners for service from December 7, 1941 to July 25, 1947;
(h) The Presidential Testimonial Letter signed by President Harry S. Truman was awarded to all active Merchant Mariners of World War II;
(i) The Government of the Philippines authorized the Philippine Defense Medal/Ribbon and Philippine Liberation Medal to members of crews of vessels who served in Philippine
(j) The Soviet Commemorative Medal was awarded to Merchant Mariners who participated in convoys to Murmansk during World War II.
5. Korea Service Medal and bar: For Merchant Mariners who sailed during the Korean War, the Maritime Administration has authorized the Korean Service Medal and bar to be awarded to mariners who served in the Merchant Marine in waters adjacent to Korea between June 30, 1950 and September 30, 1953.
6. Vietnam Service Medal and bar: For Merchant Mariners who sailed during the Vietnam conflict who served in the Merchant Marine at any time from July 4, 1965 to August 15, 1973 in waters adjacent to Vietnam.
7. Merchant Marine Expeditionary Medal: Established in 1990 to recognize U.S. Merchant Mariners who served on U.S.-flag ships in support of U.S. military and allied forces. This medal was first for service in Operations DESERT SHIELD and DESERT STORM. The medal is also authorized for mariners who served in Operations ENDURING FREEDOM and IRAQI FREEDOM.
8. Merchant Marine Medal for Outstanding Achievement: The Merchant Marine Medal for Outstanding Achievement is an award given to mariners or other individuals making a significant contribution to the U.S. Merchant Marine or the maritime industry of the United States. The medal may be awarded by the Maritime Administrator for any activities that he/she finds to be an outstanding maritime achievement. For example, the medal may be awarded to recognize mariners or other individuals for maritime activities of a humanitarian nature. The medal also may be awarded to recognize those individuals in the maritime industry and educational community for their outstanding achievements and contributions to the U.S. Merchant Marine or the maritime industry of the United States. Individuals making significant contributions to fostering, developing and promoting the U.S. Merchant Marine or the maritime industries of the United States also are eligible for the award.
9. The Administrator's Professional Ship Award is intended to recognize National Defense Reserve Fleet (“NDRF”) vessels, crews, ship managers, general agents and related contractors and other related personnel that achieve the highest degree of readiness, performance, efficiency, reliability, productivity and safety, or that have distinguished themselves through outstanding accomplishment or significant mission contribution in connection with NDRF missions;
(a) Each vessel, individual, or other entity approved for this award will receive a commendation letter from the Maritime Administrator and a certificate. The certificate will be inscribed with the name of the ship and the operation or other activity for which the award was earned and signed by the Administrator;
(b) With respect to an award given to an NDRF vessel, the certificate will be framed and forwarded to the appropriate Ship Manager/General Agent to be mounted in the master's office or other appropriate area on the vessel; and
(c) Awards will be based on demonstrated and sustained superior performance in fulfilling the vessel's assigned mission. Information will be considered from all sources (
10. Additional awards:
(a) The Maritime Administrator may determine to create award categories in addition to the awards set forth above.
(b) The Awards Committee may recommend to the Maritime Administrator such additional award categories as it deems appropriate.
(c) Any recommendation and establishment of a new award category shall contain the following:
i. A specific title for the award;
ii. A description of what would be awarded; (
iii. Detailed criteria as to what is necessary to qualify for such award; and
iv. A determination by the Office of Chief Counsel that such an award category is within the authority under Public Law 84-759 and 46 CFR part 350 or this MAO.
(d) All such new award categories shall be published in the Code of Federal Regulations and on MARAD's Web site.
(e) In any case of a proposed award or citation to a foreign vessel or to a master or person serving aboard such vessel, such award or citation shall be subject to the concurrence of the Secretary of State.
In times of war and national emergency, the Merchant Mariners of the United States have played a critical role in the transportation system that supports and serves with the armed forces of the United States. Termed the “fourth arm” of defense by President Franklin D. Roosevelt, the mariners of the United States provide vital transportation of critical personnel and materials to the appropriate locations in support of the national defense and emergency response efforts of the United States.
MARAD receives requests for Merchant Marine flags and logos from organizations that wish to honor the historic and continuing contributions of Merchant Mariners to the United States. MARAD also has received requests for Merchant Marine flags and logos from various educational organizations that perform maritime training.
Honoring the historic and continuing contributions of Merchant Mariners supports MARAD's mission. Providing these flags, and displaying them with the flags of the U.S. Armed Forces, recognizes the role Merchant Mariners have played and continue to play in the national defense of the United States. In recognizing the achievements and importance of the service of U.S. Merchant Mariners, the displays will enhance public awareness of the United States Merchant Marine as a career path for citizens of the U.S. and focus individuals considering such careers on the importance and value of the work they would do as Merchant Mariners. This recognition will serve to underscore the dignity and significance of the U.S. Merchant Marine as a whole. In addition, such flags will remind those training to be Merchant Mariners that they are part of a long tradition and profession whose mission goes beyond individual gain in support of the highest principles of public service.
Merchant Marine flags are neither gifts nor awards for individuals. Their purpose is to recognize and memorialize the past and continuing role and contribution of the Merchant Mariners of the United States.
The Merchant Marine Awards and Flag Committee will make recommendations to the Maritime Administrator regarding which groups satisfy the criteria set forth below and whether it should receive either the donation or a loan of the Merchant Marine flag and under what terms and conditions.
Merchant Marine flags may only be donated or loaned to the following groups:
1. Public entities, or civic organizations in the United States qualified under United States Code, Title 26, section 501(c)(3), which at the location in which the Merchant Marine flag would be displayed have, at the time of application, at least 100 members and host visits by at least 2,500 other members of the public annually in that location; and, at the time of application, publicly display the United States flag and the flag of at least one United States military service.
2. Educational institutions providing maritime training that would lead to a career in the United States Merchant Marine.
3. Institutions qualified to receive donated property under 46 U.S.C. 51103.
4. Non-profit organizations as defined by Section 501(c) of the United States Internal Revenue Code (26 U.S.C. 501(c)), memorial/museum ships, and public bodies that:
(a) Are registered with the Internal Revenue Service as a non-profit organization;
(b) Are open to the public, or have and will display the flags in publicly accessible areas; and
(c) Possess an educational, maritime, or civic mission.
5. Federal, State or local government entities that will display the flags in publicly accessible areas.
6. Cemeteries or other locations at which U.S. Merchant Mariners are buried and where the Merchant Marine flag will be displayed with the flags of at least one other of the Armed Forces of the United States.
Consistent with the Administrative Procedures Act and Department of Transportation rulemaking policy, MARAD is publishing this policy in the
Public Law 84-759, 46 CFR part 350, 46 U.S.C. 51901.
By Order of the Maritime Administrator.
Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of application delayed more than 180 days.
In accordance with the requirements of 49 U.S.C. 5117(c), PHMSA is publishing the following list of special permit applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application.
Ryan Paquet, Director, Office of Hazardous Materials Special Permits and Approvals, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, subpart B), notice is hereby given of the actions on special permits applications in (October to October 2014). The mode of transportation involved are identified by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft. Application numbers prefixed by the letters EE represent applications for Emergency Special Permits. It should be noted that some of the sections cited were those in effect at the time certain special permits were issued.
LEWPAC, LLC (LP), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to lease from Mount Vernon Terminal Railway LLC (MVTR), and to operate, a 0.47-mile line of railroad between milepost 1.172 and milepost 1.642 in Skagit County, Wash.
LP certifies that the projected annual revenues as a result of this transaction will not result in LP's becoming a Class I or Class II rail carrier and will not exceed $5 million. LP states that there are no agreements applicable to the line imposing any interchange commitments. LP also states that the line connects with the BNSF Railway Company's Bellingham Subdivision at milepost 70 in Mount Vernon, Wash.
The proposed transaction may be consummated on or after June 4, 2015, the effective date of this exemption (30 days after the verified notice was filed).
An original and 10 copies of all pleadings, referring to Docket No. FD 35917, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on applicant's representative, John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
On April 30, 2015, R.J. Corman Railroad Company/Allentown Lines, Inc. (RJC) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from provisions of 49 U.S.C. 10903 to abandon approximately 3.5 miles of rail line extending between milepost 93.18 in Allentown, Pa., and milepost 96.709 in or near Whitehall, Pa. (the Line). The Line traverses United States Postal Service Zip Codes 18102 and 18052.
According to RJC, there is one shipper, American Carbonation (AC), which leases property adjacent to the right-of-way to conduct a transload operation. RJC states that AC is aware of RJC's proposed abandonment and does not object. RJC and AC have worked to relocate AC's transloading operation to a nearby RJC yard track not included within the scope of this abandonment. From the new location, RJC will serve AC directly at (or before) such time as RJC officially terminates operations over the Line. AC expects to be able to ship and receive carload traffic to and from this new location on or before May 31, 2015.
After receiving Board authority to abandon the Line, RJC intends to salvage the rails, ties, and other track material and then convey its right, title, and interest, if any, in the portion of the subject right-of-way to Trestle Redevelopment Partners (Trestle). Trestle plans to use that portion of the corridor in connection with a multi-faceted riverfront redevelopment project.
According to RJC, the Line does not contain federally granted rights-of-way. Any documentation in RJC's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuing this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by August 19, 2015.
Any OFA under 49 CFR 1152.27(b)(2) will be due by August 29, 2015, or 10 days after service of a decision granting the petition for exemption, whichever occurs first. Each OFA must be accompanied by a $1,600 filing fee.
All interested persons should be aware that, following abandonment, the Line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than June 10, 2015. Each trail request must be accompanied by a $300 filing fee.
All filings in response to this notice must refer to Docket No. AB 550 (Sub-No. 3X) and must be sent to: (1) Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001; and (2) Audrey L. Brodrick, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606-2832. Replies to the petition are due on or before June 10, 2015.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs and Compliance at (202) 245-0238 or refer to the full abandonment regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at 1-800-877-8339.
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by OEA will be served upon all parties of record and upon any other agencies or persons who comment during its preparation. Other interested persons may contact OEA to obtain a copy of the EA (or EIS). EAs in abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA generally will be within 30 days of its service.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
By petition filed on March 19, 2015, Tri-City Railroad Company, LLC (TCRY) seeks a declaratory order concerning efforts by two Washington State communities to bisect TCRY's tracks with a proposed at-grade street crossing. TCRY, a Class III rail carrier, operates on approximately 16 miles of track, which is owned by the Port of Benton.
TCRY states that the Cities filed two petitions with the Washington State Utilities and Transportation Commission (UTC) to approve the at-grade crossing at issue here. TCRY claims that the first petition, filed in 2006, was denied because the UTC found that the Cities had failed to meet their burden to demonstrate that the
The Cities subsequently served a pre-condemnation notice outlining the Cities' plan for condemning the right-of-way and offered $38,500 in compensation.
The Cities did not file a reply to the petition for declaratory order as provided for in 49 CFR1104.13(a), but they did file a notice of appearance on March 20, 2015.
The Board has discretionary authority under 5 U.S.C. 554(e) and 49 U.S.C. 721 to issue a declaratory order to eliminate a controversy or remove uncertainty. Here, a controversy exists as to whether the proposed condemnation action to construct an at-grade crossing is preempted under 10501(b), and the record is incomplete. The Board will therefore institute a declaratory order proceeding and consider the matter under the modified procedure rules at 49 CFR pt. 1112.
The Board will treat TCRY's March 19 petition as its opening statement. Replies and comments from interested parties are due June 8, 2015. TCRY's rebuttal to all replies and comments shall be due June 17, 2015.
1. A declaratory order proceeding is instituted. This proceeding will be handled under the modified procedure on the basis of written statements submitted by the parties. All parties must comply with the Rules of Practice, including 49 CFR parts 1112 and 1114.
2. Replies are due June 8, 2015.
3. TCRY's rebuttal is due June 17, 2015.
4. Notice of the Board's action will be published in the
5. This decision is effective on its service date.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before June 22, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
United States Institute of Peace.
Notice of Intent to Release a Request for Proposal (RFP) for Facility Management Services.
United States Institute of Peace (USIP) is intending to release a Request for Proposal (RFP) on June 30, 2015, for Facility Management Services.
The following information provides background information for the intended RFP as well as high level view of the “Expected Scope of Services.” Also included with this notice is a summary of estimated key dates to enable appropriate planning by the vendor community. The purpose of this notice is to provide early awareness of this impending RFP in our effort to support broad and fair competition for this procurement.
Please note that USIP will not entertain questions regarding this RFP until the REP is released.
Expected Scope of Services: Below are targeted objectives for the facility management services contract for the USIP Campus. The objectives have been organized under the following:
Fish and Wildlife Service, Interior.
Proposed rule; availability of draft post-delisting monitoring plan.
We, the U.S. Fish and Wildlife Service (Service), propose to remove the Louisiana black bear (
To allow us adequate time to consider your comments on this proposed rule, we must receive your comments on or before July 20, 2015. We will hold two public hearings on this proposed rule. The first hearing will be in Tallulah, LA on June 23, 2015, from 7:00 to 9:00 p.m. (Central Time). The second hearing will be in Baton Rouge, LA on June 25, 2015, from 7:00 to 9:00 p.m. (Central Time) (see
You may submit comments on this proposed rule and draft PDM plan by one of the following methods:
•
•
We request that you send comments only by the methods described above. We will post all comments on
Jeffrey Weller, Field Supervisor, U.S. Fish and Wildlife Service, Louisiana Ecological Services Field Office, 646 Cajundome Boulevard, Suite 400, Lafayette, Louisiana 70506; telephone (337) 291-3100. Individuals who are hearing-impaired or speech-impaired may call the Federal Information Relay Service at (800) 877-8339 for TTY assistance 24 hours a day, 7 days a week.
We propose to remove the Louisiana black bear from the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) due to recovery. This proposed action is based on a thorough review of the best available and commercial information. This document proposes to delist this threatened bear and announces the availability of a draft post delisting monitoring (PDM
We may delist a species if the best scientific and commercial data indicate the species is neither a threatened species nor an endangered species for one or more of the following reasons:
(1) The species is extinct;
(2) the species has recovered and is no longer threatened or endangered; or
(3) the original data used at the time the species was classified were in error. Here, we have determined that the species may be considered for delisting based on recovery:
• The Louisiana black bear was listed as a threatened species primarily because of the historical modification and reduction of habitat, the reduced quality of remaining habitat due to fragmentation, and the threat of future habitat conversion and human-related mortality (57 FR 588, January 7, 1992). At that time, the Louisiana black bear population consisted of three breeding subpopulations, the Tensas River, Upper Atchafalaya River, and Lower Atchafalaya River Basins (TRB, UARB, and LARB, respectively). An indirect result of habitat fragmentation was isolation of the already small bear populations, subjecting them to threats from such factors as demographic stochasticity
• In February 2014, we completed a 5-year status review. The review indicated that habitat restoration and protection, designed to facilitate population expansion, movement of bears between subpopulations, and
• Since completion of the 5-year review, the Louisiana black bear population now consists of four main subpopulations in Louisiana and several additional satellite subpopulations in Louisiana and Mississippi. Research has documented that the four main Louisiana subpopulations (TRB, TRC, UARB, and LARB) are stable or increasing (Hooker 2010, O'Connell 2013, Troxler 2013, Laufenberg and Clark 2014, entire documents respectively). The Louisiana black bear recovery plan defines a minimum viable subpopulation as one that has a 95 percent or better chance of persistence over 100 years, despite the foreseeable effects of four stochastic factors: demography, environment, genetics, and natural catastrophe (Service 1995, p. 14). According to the most recent research and modeling efforts, the TRB subpopulation has a 96 to 100 percent probability of persistence over 100 years; similarly, the UARB subpopulation has an 85 to 99 percent probability of persistence over the next 100 years (Laufenberg and Clark 2014, pp. 66-67) and the TRC subpopulation persistence probabilities were greater than or equal to 95 percent only for projections based on the most optimistic set of assumptions (Laufenberg and Clark 2014, p. 67). Although the long-term viability of the LARB subpopulation is not known, it remains the second largest Louisiana black bear subpopulation and has approximately doubled in size in just the last 10 years, in spite of a relatively high rate of adult female mortality (due to anthropogenic and natural sources of mortality, existing dispersal barriers, and other threats to the LARB subpopulation). A metapopulation (a group of subpopulations that interact (
• A large proportion of habitat (an increase of over 430 percent since the time of listing) supporting breeding subpopulations and interconnecting those subpopulations has been protected and restored through management on publicly owned lands, or through private landowner restoration efforts with permanent non-developmental easements. The threat of significant habitat loss and conversion that was present at listing has been significantly reduced and in many cases reversed. These habitat restoration and protection activities are expected to continue due to their value to many other species. Since the listing of the Louisiana black bear in 1992, voluntary landowner-incentive based habitat restoration programs and environmental regulations have not only stopped the net loss of forested lands in the Lower Mississippi River Alluvial Valley (LMRAV), but have resulted in significant habitat gains within both the LMRAV and the Louisiana black bear habitat restoration planning area (HRPA). A substantial portion of those restored habitats are protected with perpetual non-development easements (through the NRCS's Wetland Reserve Program [WRP] or wetland mitigation banking programs) (see the Factor D evaluation below). Public management areas such as National Wildlife Refuges (NWRs), Wildlife Management Areas (WMAs), and Corps of Engineers (Corps) lands supporting Louisiana black bear subpopulations are also protected and managed in a way that benefits the Louisiana black bear. Remnant and restored forested wetlands are provided protection through applicable conservation regulations (
Taking into consideration the current long-term viability of the Louisiana black bear metapopulation (TRB, TRC, and UARB), the protection of suitable habitat, and the lack of significant threats to the Louisiana black bear or its habitat, our conclusion is that this subspecies no longer meets the definition of a threatened species under the Act.
We intend that any final action resulting from this proposed rule will be as accurate and effective as possible. Therefore, we request data, comments, and new information on this proposed rule from other governmental agencies, Tribes, the scientific community, industry, or other interested parties. The comments that will be most useful and
(1) Biological data regarding the Louisiana black bear including locations of any additional breeding subpopulations.
(2) Relevant data concerning any threats (or lack thereof) to the Louisiana black bear, as well as the extent of Federal and State protection and management, if this rule is finalized, that would be provided to the Louisiana black bear as a delisted species.
(3) Current or planned activities within the geographic range of the Louisiana black bear that may impact or benefit the species (
(4) The draft post-delisting monitoring plan and the methods and approaches detailed in it.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that a determination as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”
In issuing a final determination on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Similarly, if you mail or hand-deliver a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on
Comments and materials we receive, as well as supporting documentation used in preparing this proposed rule will be available for public inspection in two ways:
(1) You can view them on
(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service, Louisiana Field Office (see
We have scheduled formal public hearings to afford all interested parties with an opportunity to make formal oral comments on the proposed delisting of the Louisiana black bear. We will hold two public informational open houses from 6:00 p.m. to 7:00 p.m., followed by public hearings from 7:00 p.m. to 9:00 p.m., on the dates specified above in
Written comments submitted during the comment period receive equal consideration with comments presented at a public hearing. All comments we receive at the public hearing, both oral and written, will be considered in making our final decision.
On January 7, 1992, we published a final rule in the
On September 27, 1995, we published the Louisiana Black Bear Recovery Plan (Service 1995, 59 pp.). On August 2, 2007, we initiated a 5-year status review of this species (72 FR 42425). On March 10, 2009, we published a final rule in the
For additional details on previous Federal actions, see discussion under the Recovery section below. Also, see
The Louisiana black bear is one of 16 subspecies of the American black bear (
(1) The American black bear (
(2) the Florida black bear (
(3) the Louisiana black bear (
At the time of listing, known Louisiana black bear breeding subpopulations were restricted to the LMRAV in Louisiana (Service 1995, p. 2) with small numbers of bears reported in Mississippi. When we listed the Louisiana black bear, we primarily relied on Hall's (1981, pp. 950-951) depiction of the historical distribution; however, Hall (1981, pp. 950-951) included the southernmost counties of Arkansas as part of the historical range. While acknowledging that the Louisiana black bear was not a geographic isolate and that movement of individuals between American black bears in southern Arkansas and Louisiana bears existed, we did not include those counties as part of the historical range for the listed entity because there were no specimens to support doing so (57 FR 588).
The validity of the Louisiana black bear as a subspecies has been debated during and since listing, primarily focusing on potential genetic effects to Louisiana black bear subpopulations from the translocation of bears from Minnesota during the 1960s and the subspecific status of southern Arkansas bears. Based on Pelton's (1989, pp. 13-15) blood protein, electrophoresis, mitochondrial DNA analysis and Kennedy's (1989, pp. 9-10) analysis of skull measurements, the Service concluded that the evidence, although not overwhelming, did support the validity of the subspecies (55 FR 25341, June 21, 1990) and subsequently listed the Louisiana black bear recognizing its subspecies status and distribution based on morphometric
(1) restricted gene flow between subpopulations due to habitat loss and fragmentation;
(2) accelerated genetic drift related to past reductions in subpopulation abundances; and
(3) differing levels of genetic introgression as a result of the Minnesota introductions.
Louisiana black bear subpopulations show some affinities to the White River Basin (WRB) subpopulation and Minnesota bears. However, the level of genetic affinity or differentiation between the Louisiana black bear subpopulations and the WRB subpopulation and Minnesota bears is not sufficient evidence for determining taxonomic status (Laufenberg and Clark 2014, p. 85).
The Louisiana black bear is a large, bulky mammal with long, coarse black hair and a short, well-haired tail. The facial profile is blunt, the eyes small, and the nose pad broad with large nostrils. The muzzle is yellowish brown with a white patch sometimes present on the lower throat and chest. Black bear color varies between black, blonde, cinnamon, and brown; but in Louisiana, bears have only been documented as black (Davidson et al. 2015, p. 8). Louisiana black bears are not readily visually distinguishable from other black bear subspecies. Black bears have five toes with short, curved claws on the front and hind feet. The median estimated weight for male and female Louisiana black bears in north Louisiana is 292 lb (133 kg) and 147 lb (67 kg), respectively (Weaver 1999, p. 26). This is similar to that reported for black bears throughout their range by Pelton (2003, p. 547).
Average age at first reproduction varies widely across black bear studies; however, most reports involve bears between 3 years and 5 years of age (Weaver 1990a, p. 5). Weaver (1999, p. 28) reported that all adult females (greater than or equal to 4 years old) in the TRB subpopulation had evidence of previous lactation or were with cubs. Breeding occurs in summer and the gestation period for black bears is 7 to 8 months. Delayed implantation occurs in the black bear (blastocysts float free in the uterus and do not implant until late November or early December) (Pelton 2003, p. 547). Observations of Louisiana black bears indicate that they enter dens primarily from late November to early December and emerge in March and April (Weaver 1999, p. 125, Table 4.4). Adult Louisiana black bears generally den longer than subadults, and females longer than males (Weaver 1999, p. 123). Cubs are born in winter dens at the end of January or the beginning of February (Pelton 2003, p. 548). The normal litter sizes range from one to four cubs (Laufenberg and Clark 2014, p. 35), and occasionally litters of five have been documented (Davidson et al. 2015, p. 11). Cubs are altricial (helpless) at birth (Weaver 1990a, p. 5; Pelton 2003,
Adult females normally breed every other year (Pelton 2003, p. 548). Not all females produce cubs every other winter; reproduction is related to physiological condition (
Like other black bears, the Louisiana black bear is a habitat generalist. Large tracts of bottomland hardwood (BLH) forest communities having high species and age class diversity can provide for the black bear's life requisites (
Den trees may be an important component for female reproductive success in areas subject to flooding (Hellgren and Vaughan 1989, p. 352). Den trees located in cypress swamps would also appear to increase the security (
Bear activity revolves primarily around the search for food, water, cover, and mates during the breeding season. Though classified as a carnivore by taxonomists, black bears are not active predators and only prey on vertebrates when the opportunity arises; most vertebrates are consumed as carrion (Pelton 2003, p. 551). Bears are best described as opportunistic feeders, as they eat almost anything that is available; thus, they are typically omnivorous. Their diet varies seasonally, and includes primarily succulent vegetation during spring, fruits and grains in summer, and hard mast (such as acorns and pecans) during fall. Bears utilize all levels of forest for feeding; they can gather foods from tree tops and vines, but also collect beetles and grubs in fallen logs and rotting wood.
The size of the area necessary to support black bears may differ depending on population density, habitat quality, conservation goals, and assumptions regarding minimum viable populations (Rudis and Tansey 1995, p. 172, Pelton 2003, p. 549). Maintaining and enhancing key habitat patches within breeding habitat is a critical conservation strategy for black bears (Hellgren and Vaughan 1994, p. 276). Areas should be large enough to maintain female survival rates above the minimum rate necessary to sustain a population (Hellgren and Vaughan 1994, p. 280). Weaver (1999, pp. 105-106) documented that bear home ranges and movements were centered in forested habitat and noted that actions to conserve, enhance, and restore that habitat would promote population recovery, although no recommendations on minimum requirements were provided. Hellgren and Vaughn (1994, p. 283) concluded that large, contiguous forests are a critical conservation need for black bears. The home ranges of Louisiana black bears appear to be closely linked to forest cover (Marchinton 1995, p. 48, Anderson 1997, p. 35).
Female range size may be partly determined by habitat quality (Amstrup and Beecham 1976, p. 345), while male home range size may be determined by the distribution of females (
Home range estimates, calculated as the minimum convex polygon (MCP), vary for the Louisiana black bear. The MCP is a way to represent animal movement data and is calculated as the smallest (convex) polygon that contains all the points a group of animals has visited. Mean MCP home range estimates for the Tensas River NWR subpopulation were 35,736 ac (14,462 ha) and 5,550 ac (2,426 ha) for males and females, respectively (Weaver 1999, p. 70). Male home ranges (MCP) in the UARB population may be as high as 80,000 ac (32,375 ha), while female home ranges are approximately 8,000 ac (3,237 ha) (Wagner 1995, p. 12). LARB population home ranges (MCP) were estimated to be 10,477 ac (4,200 ha) for males, and 3,781 ac (1,530 ha) for females (Wagner 1995, p. 12).
Habitat fragmentation can create barriers to immigration and emigration that can affect population demographics and genetic integrity (Clark et al. 2006, p. 12). Fragmentation was identified as a threat to the Louisiana black bear at the time of its listing because it limits the potential for the existing Louisiana black bear subpopulations to expand their breeding range (Service 1995, p. 8). Habitat fragmentation can restrict bear movements both within and between populations (Marchinton 1995, p. 53: Beausoleil et al. 2005, p. 403). Even though Louisiana black bears are capable of traveling long distances, including swimming across rivers, open areas, roads, large waterways, development, and large expanses of agricultural land may affect habitat contiguity, and such features tend to impede the movement of bears (Clark 1999, p. 107). Laufenberg and Clark (2014, p. 84) detected evidence of possible gene flow restriction in the TRB associated with U.S. Interstate 20 (I-20). Such barriers can result in increased mortality as bears are forced to forage on less protected sites, travel farther to forage, or cross roads (Hellgren and Maehr 1992, pp. 154-156, Pelton 2003, p. 549; Laufenberg and Clark 2014, p. 84).
Even bear populations in a relatively large habitat patch are not necessarily ensured of long-term survival without recolonization by bears from adjacent patches (Clark 1999, p. 111). Anderson (1997, p. 73) observed that males may not be as affected by fragmentation as females. Louisiana black bears have been observed to occur in open areas such as fields (Anderson 1997, p. 45). Tracking the dispersal of translocated females demonstrated that bears can disperse through fragmented landscapes (Benson 2005, p. 98). The results of genetic analyses indicated differentiation between the three Louisiana subpopulations present at listing (TRB, UARB, and LARB) partially as the result of restricted gene flow (Laufenberg and Clark 2014, p. 84). Laufenberg and Clark (2014, p. 24) analyzed connectivity between Louisiana black bear subpopulations using a combination of genetic markers (differentiating resident from immigrant bears and within-population genetic structure) and actual bear movements as recorded by global positioning system (GPS) data and step-selection function (SSF) models. Tools like SSF models are relatively new powerful models used to quantify and to simulate the routes and rates of interchange selected by animals moving through the landscape. The SSF models can be used to identify landscape features that may facilitate or impede interchange or dispersal. The results of connectivity modeling indicated that in general, the bears selected a movement direction as distance to natural cover and agriculture decreased and distance to roads increased (Laufenberg and Clark 2014, pp. 70-71). Those models also predicted occasional crossing of habitat gaps (even large ones) by both males and females.
When Laufenberg and Clark examined the potential effect of continuous corridors on bear dispersal, they concluded that while such corridors may be important, they were not more effective than the presence of a broken habitat matrix such as that currently surrounding Louisiana black bear subpopulations (Laufenberg and Clark 2014, p. 85). The genetic and GPS data used in Laufenberg and Clark's study (2014, p. 86) generally agreed with the connectivity model results, which indicated interchange was occurring between some Louisiana black bear subpopulations and unlikely to occur between others (see discussion below where emigration and immigration is discussed). Laufenberg and Clark concluded that a patchwork of natural land cover between Louisiana black bear breeding subpopulations may be sufficient for movement of individuals to occur between subpopulations (at least for males) (Laufenberg and Clark 2014, p. 90).
Historically, the Louisiana black bear was believed to be common or numerous in bottomland hardwood (BLH) forests such as the Big Thicket area of Texas, the TRB, ARB, and LMRAV in Louisiana, and the Yazoo River Basin in Mississippi (St. Amant 1959, p. 32; Nowak 1986, p. 4). Exploitation of Louisiana black bears due to hunting and large-scale destruction of forests from the 1700s to the early 1800s resulted in low numbers of bears that were confined to the BLH forests of Madison and Tensas Parishes and the LARB BLH forests in Louisiana (St. Amant 1959, pp. 32, 44); black bears in Mississippi were similarly affected (Shropshire 1996, pp. 25-33). At the time of listing, additional extensive land clearing, mainly for agricultural purposes, had further reduced its habitat by more than 80 percent (Gosselink et al. 1990, p. 592), and the remaining habitat quality had been degraded by fragmentation. That fragmentation caused isolation of the already small subpopulations, subjecting them to threats from such factors as demographic stochasticity and inbreeding. Known breeding subpopulations were known to occur in fragmented BLH forest communities of the TRB, LARB, and UARB of Louisiana (Weaver 1990a, p. 2; Service 1992, p. 2) (Figure 1), and were believed to be demographically isolated (BBCC 1997, p. 10). No reliable estimates of population numbers were known at the time of listing, but only 80 to 120 Louisiana black bears were estimated to remain in Louisiana in the 1950s (Nowak 1986, p. 4). Bears had occasionally been reported in Louisiana outside of these areas, but it was unknown if those bears were reproducing females or only wandering subadult and adult males (Service 1992, p. 2).
Black bears were also known to exist in Mississippi along the Mississippi River and smaller areas in the Lower East Pearl River and Lower Pascagoula River Basins of southern Mississippi (Weaver 1990a, p. 2). Fewer than 25 bears were estimated to reside in Mississippi at the time of listing (Shropshire 1996, p. 35 citing Jones 1984). The last known Mississippi breeding subpopulation occurred in Issaquena County in 1976 (Shropshire 1996, p. 38 citing Jones 1984). Similarly, black bears were exterminated from southeastern Texas during the period from 1900 to 1940 largely as a result of overhunting (Schmidley 1983, p. 1); and, except for wanderers, the resident bear populations had not been observed in eastern Texas for many years (Nowak 1986, p. 7). Key demographic attributes (
Currently, the Louisiana black bear remains in the BLH forests of the
Based on the best available data, all three original breeding subpopulations appear to be stable or increasing, and emigration and immigration (
At the time of listing, there was no evidence that interchange was occuring between the two TRB subgroups. They were thought to be isolated and disjunct from each other (BBCC 1997, p. 99) until Anderson (1997, p. 82) reported one of the first instances of a bear moving between these two areas. Evidence of that historical separation in the recent genetic history of sampled bears was detected by Laufenburg and Clark (2014, p. 54). Though the two subgroups are separated by I-20 and Hwy 80, a significant amount of habitat between those subgroups has been restored primarily within the last 10 years. Increased sightings and vehicular mortality of bears in the vicinity of I-20 indicate that bears are attempting to disperse (Benson 2005, p. 97) and current radio-collar data and genetic evidence supports some successful interchange (Laufenberg 2015, personal communication). Furthermore, the current genetic structure of Louisiana black bear subpopulations groups bears in those two areas as one subpopulation (Laufenberg and Clark 2014, p. 60). Hooker (2010, p. 26) estimated a population abundance (for both genders averaged across years) of 294 bears (standard error [SE] = 31) for the combined Tensas River NWR and nearby Deltic and State-owned tracts with an apparent annual survival rate of 0.91 (SE = 0.08), which did not differ by gender. The pooled population annual growth rate for both genders was 1.04
According to the most recent study results (Laufenburg and Clark 2014, p. 31), the estimated mean annual survival rate for radio-collared adult female bears in the TRB subpopulation was 0.99 (95 percent confidence interval [CI] 0.96-1.00) when data for bears with unknown fates were censored (assumed alive) and was 0.97 (95 percent CI = 0.93-0.99) when unknown fates were treated as mortalities. Detection heterogeneity (differences in detectability among individuals from such things as size, behavior, etc.) is a well known issue in estimating black bear vital rates. Mathematical models can be used to account for those differences; however, it is impossible to identify the appropriate group of distributions (a distribution describes the numbers of times each possible outcome occurs in a sample) to use in a model because the same distribution could result from several different sets of circumstances (Laufenberg and Clark (2014, pp. 18). Therefore, Laufenberg and Clark (2014, pp. 18-19) used two models to estimate population numbers. Model 1 assumed detection heterogeneity followed a logistic-normal distribution, and Model 2 assumed a 2-point finite mixture distribution
Mean cub and yearling litter size for the TRB subpopulation were an estimated 1.85 and 1.40 respectively, and fecundity and yearling recruitment for the TRB were 0.47 and 0.15, respectively (Laufenberg and Clark 2014, p. 35). Annual per-capita recruitment estimates ranged from 0.00 to 0.22, and estimates of female apparent survival rates (these included emigration) ranged from 0.87 to 0.93 based on capture-mark-recapture (CMR) data. The estimated mean of the population growth rate ranged from 0.97 (range = 0.88-1.06) to 1.02 (range = 0.98-1.09), depending on model assumptions (Laufenberg and Clark 2014, p. 45), which indicates a stable to increasing population.
Early studies suggested that the TRB subpopulation had low genetic diversity (Boersen et al. 2003, p. 204). The recent study by Laufenberg and Clark (2014, pp. 84-85) indicate that genetic exchange with other subpopulations has occurred at a level substantial enough to increase genetic diversity at TRB (Davidson et al. 2015, pp. 26), primarily as a result of bear emigration from the WRB subpopulation of Arkansas into the TRB subpopulation. The results of recent population structure analyses, however, show evidence of bear emigration from the WRB subpopulation of Arkansas into the TRB subpopulation (Laufenberg and Clark 2014, p. 85). Nearly 30 bears sampled in the TRB had a probability greater than or equal to 0.10 of originating from the WRB subpopulation in Arkansas (6 bears were identified as WRB migrants), and 1 had a 0.48 probability of coming from the UARB (Laufenberg and Clark 2014, p. 63). Additionally, ten bears sampled in northwestern Mississippi were determined to have a probability greater than or equal to 0.90 of originating from the TRB. The analysis of genetic data identified five bears in the TRB as migrants from the WRB subpopulation (Laufenberg and Clark 2014, p. 67). Three males captured in the TRB had CMR histories that indicated they had dispersed from the TRC subpopulation, and an additional male was identified as a second generation migrant from the UARB subpopulation (Laufenberg and Clark 2014, p. 67). One male detected in the TRB subpopulation was subsequently live-captured in Mississippi (Laufenberg and Clark 2014, p. 67).
Laufenberg and Clark (2014, p. 85) suggested genetic interchange by bears from outside the range of the Louisiana black bear (that is, Arkansas) probably should be considered as a positive genetic and demographic contribution to the Louisiana black bear. Connectivity modeling analyses by Laufenberg and Clark (2014, p. 90) indicated that, without the presence of the TRC subpopulation, there was low potential for dispersal of either sex between TRB and UARB. Recent LDWF capture records (USGS et al. 2014) have documented the presence of additional resident breeding females between the TRC and the TRB subpopulations, which may significantly increase the probabilities for interchange (M. Davidson and S. Murphy, LDWF, 2015, unpublished data).
Laufenberg and Clark (2014, p. 90) suggested that the establishment of satellite populations of resident breeding bears between subpopulations may be a more effective measure to link populations than the establishment of continous habitat corridors. Laufenberg and Clark 2014, pp. 22-24) developed a series of population persistence models to assess the long-term viability of Louisiana black bear subpopulations. Those models were developed using multiple methods to address the treatment of bears with unknown fates. Model 1 uses censored fates (assumed alive), and Model 2 assumes mortality. In addition, because there is uncertainty in various (
We estimated there were approximately 400,000 to 500,000 ac (161,875 to 202,343 ha) of forested habitat in the TRB in the early 1990s (Service 2014, p. 33). Comparing the small-scale National Land Cover Database (NLCD) estimates of habitat for 2001 and 2011, there has been an increase of 1,312 ac (531 ha) in the TRB HRPA (Table 8). Currently, based on
As discussed previously, Laufenberg and Clark's connectivity models (2014, p. 90) indicated there was no potential for dispersal of either sex between the TRB and UARB subpopulations without the current presence of the TRC subpopulation. The modeled potential for natural interchange between the UARB and TRC subpopulations is high based on the genetic and capture data (Laufenberg and Clark 2014, p. 85), and genetics data show that gene flow has occurred. Twenty of the 35 TRC cubs showed evidence of having been sired by UARB males. A 2-year-old male tagged as a cub in the UARB was later captured at the TRC, and a second generation migrant from the UARB was later captured in the TRB subpopulation (Laufenberg and Clark 2014, p. 67). The step-selection model (as discussed under Barriers to movement above) predicted that dispersals between the LARB and UARB subpopulations were infrequent but possible for males but nearly nonexistent for females (Laufenberg and Clark 2014, p. 85). Three cubs sampled in west central Mississippi, east of the TRC subpopulation, showed evidence of mixed ancestry between TRB and UARB (Laufenberg and Clark 2014, p. 63). No migrants from the UARB into the WRB or LARB were detected by Laufenberg and Clark (2014, p. 85). Recent LDWF capture records, however, verify the presence of at least one WRB migrant in the TRC subpopulation (M. Davidson, LDWF, unpublished data). Finally, genetic diversity of the UARB subpopulation is the highest among the three original Louisiana black bear subpopulations, and second highest of all extant subpopulations. Results from Laufenberg and Clark (2014, pp. 53-54) indicated this increase may be the result of the persistence of genetic material from bears sourced from Minnesota during the 1960s.
The Atchafalaya basin, located between the UARB and LARB, is currently believed to be too wet to support breeding females. Elevations within the Atchafalaya Basin are increasing due to sedimentation (Hupp et al. 2008, p. 139), and as a result, in the long term, habitat conditions between this subpopulation and the UARB subpopulation may improve over time (LeBlanc 1981, p. 65).
Historical reports do not break the Atchafalaya River Basin into the two areas that we use in terms of bear recovery and habitat restoration planning (
Although the LARB subpopulation has occasionally been characterized as a genetically unique subpopulation, recent research (Csiki et al. 2003; Troxler 2013; Laufenberg and Clark 2014) has identified a genetic bottleneck (
Currently, bears have been observed on the higher portions (levees and ridges) of the Atchafalaya Basin (Figure 1, Davidson et al. 2015, p. 23), between the UARB and LARB subpopulations, but the Basin is believed to be too wet to support breeding females. However, LeBlanc et al. (1981, p. 65) projected that by 2030, over 35,000 ac (14,000 ha) of lakes and cypress-tupelo (
We were not able to estimate the amount of forested Louisiana black bear habitat in the LARB around the time of listing based on internal maps and reports, nor were we able to tease it out from the above-mentioned studies. Nyland (1995, p. 58), based on his trapping data, estimated that bears occupied approximately 140,000 ac (56,656 ha) in Iberia and St. Mary Parishes. This is probably a slight underestimate of forested and occupied habitat at that time since it was based primarily on trapping data and did not include Avery Island to the west, a forested salt dome
In 1993, we estimated approximately 144,803 ac (58,600) supported the LARB breeding population (Table 1). Today, we estimate 130,839 ac (52,949 ha) are occupied by the LARB breeding subpopulation (Table 1). The LARB breeding area appears to have decreased in acreage over time; however, the decrease is due to a more detailed mapping in 2014 that excluded many non-habitat areas that were included in the more general 1993 boundary. In fact, spatially, the distribution appears to have increased over time (Figure 1) because we did not have the data in 1993 to support including breeding bears at the western edge on Avery Island, even though we knew bears were present. We now have the data and, therefore, included breeding bears in the 2014 mapping. Based on the inclusion of the Avery island area and exclusion of non-habitat, the actual area and spatial distribution of this breeding population has likely not changed significantly over time.
Range expansion of breeding females is a slow process, even when bear habitat is in large contiguous blocks since females typically only disperse very short distances. When the recovery plan was written, translocations (
The success of those translocations in the formation of the TRC breeding subpopulation represents a significant improvement in Louisiana black bear population demographic conditions since listing. Abundance estimates for the TRC subpopulation are currently unknown. The mean annual estimated female survival rate (2002-2012) for the TRC subpopulation ranged from 0.93 (95 percent CI = 0.85-0.97) to 0.97 (95 percent CI = 0.91-0.99) (Laufenberg and
Based on step selection function modeling, the least potential for interchange was between the TRB and TRC subpopulations, and the greatest proportion of successful projections was between the UARB and the TRC (Laufenberg and Clark 2014, p. 74). As discussed previously, the TRC has experienced and possibly facilitated gene flow with other subpopulations (Laufenberg and Clark 2014, p. 84). Three males were captured in the TRB that had dispersed from the TRC, and 20 of 35 cubs sampled in the TRC showed evidence of having been sired by UARB males (Laufenberg and Clark 2014, p. 67). One TRC female dispersed to a location southwest of the TRB subpopulation and apparently bred with an Arkansas bear (Laufenberg and Clark 2014, p. 63). Laufenberg and Clark (2014, p. 83) detected direct evidence of interchange by bears from the UARB to the TRB subpopulation via the TRC subpopulation; however, they did not have any direct evidence of reverse movements. A male bear with UARB ancestry (possibly a second generation migrant) was captured on the TRB, indicating gene flow likely facilitated by the presence of the TRC subpopulation (Laufenberg and Clark 2014, p. 84). Recent LDWF capture records verify the presence of at least one WRB migrant in the TRC subpopulation (Laufenberg and Clark 2014, p. 83).
The TRC contains some of the largest contiguous blocks of publicly owned land in Louisiana. It encompasses approximately 179,600 ac (72,700 ha) of potential bear habitat and roughly 100,000 ac (40,500 ha) of publicly owned, forested land (Richard K. Yancey, Grassy Lake, Pomme de Terre and Spring Bayou WMAs, and Lake Ophelia NWR). The location of this population and its surrounding patchwork of habitat are essential in maintaining connectivity and movement of individuals between the existing TRB and UARB populations.
Shropshire (1996, p. 64) found that Adams County contained the most suitable habitat in Mississippi and that Delta National Forest was comparable in habitat quality to Tensas River NWR. Habitat suitability models based on landscape characteristics, human attitudes, and habitat quality found the highest habitat suitability was in southern Mississippi and the lowest was in the Delta region (Bowman 1999, p. 180).
Similar to the trend for the TRB area, in the Lower Mississippi River Valley of Mississippi the total forested area increased by 11 percent between 1987 and 1994, and reforestation of former agricultural lands accounted for nearly 40 percent of that increase (King and Keeland 1999, p. 350). Approximately 110,000 ac (41,000 ha) of private land in Mississippi counties adjacent to the Mississippi River have been enrolled in WRP 99-year and permanent easements within the Mississippi Alluvial Valley Black Bear Priority Units (MAVU). When WRP permanent easement lands are added to the habitat protected on Federal and State NWRs or WMAs, other Federal- and State-protected lands, and privately owned protected lands, approximately 868,000 ac (440,000 ha) have been permanently protected and/or restored within the MAVU in Mississippi. Although not permanently protected, approximately 328,000 ac (132,737 ha) were enrolled in the Conservation Reserve Program (CRP) within the MAVU. Approximately 68 percent of breeding habitat in the MAVU is under permanent protection.
Sightings of bears in east Texas have gradually increased since 1977, the time period when the Texas Parks and Wildlife Department (TPWD) started collecting data (Chappell 2011, p. 11). Most of those sightings were believed to be juvenile or sub-adult males that had wandered into the northeastern part of the listed range from expanding populations in Oklahoma, Arkansas, and Louisiana (Barker et al. 2005, p. 7). Observations in the 1990s indicate the return of a few black bears to the remote forests of east Texas, primarily transient, solitary males that are believed to be dispersing from Arkansas and Oklahoma (D. Holdermann, TPWD, personal communication, 2014). Kaminski (2011, entire document) conducted a region-wide hair snare survey in east and southeast Texas in areas assumed to have the highest likelihood of bear occurrence and where sightings had been reported. According to the genetic analysis and based on the estimated effectiveness of their sampling method, it was determined it was highly unlikely there were established black bear populations in the region (Kaminski 2011, p. 34). Since 1990, there have been 37 verified black bear sightings in 13 east Texas counties, and preliminary examination of these data suggest that some observations may represent duplicate sightings of individual bears (D. Holdermann, TPWD, personal communication, 2014).
Kaminski (2011, p. 50) used Habitat Suitability Indices (HSI) for black bears in east and southeast Texas to identify 4 recovery units (ranging in size from 74,043 to 183,562 ac (31,583 to 74,285 ha) capable of sustaining viable back bear populations. Estimated HSI scores for each were comparable to other estimates for the occupied range of black bears in the southeast, and the estimated acreage of suitable habitat for all units exceeded those estimated to support existing Louisiana black bear populations (Kaminski 2011). Approximately 11.8 million ac (477,530 ha) of the Pineywoods area of east Texas is classified as forest, of which approximately 61 percent is non-industrial private timberland (Barker et al. 2005, pp. 25-26). Habitat fragmentation may become a concern in east Texas as timberland owners dissolve their holdings over much of southeast Texas lands (Barker et al. 2005, p. 26). Future water reservoir developments further threaten the highest quality habitat remaining in East Texas (Barker et al. 2005, p. 26).
Although there is currently no evidence of a resident breeding population of black bears in east Texas, bear recovery and range expansion in bordering Louisiana, Arkansas, and Oklahoma may increase bear occurrence and activity in east Texas in future years. Habitat restoration activities continue in Texas.
The TPWD field analyses of remaining potential black bear habitats within east Texas (using habitat suitability models) found that the Sulphur River Bottom, Middle and Lower Neches River Corridors, and Big Thicket National Preserve areas in east Texas were all suitable for black bears and that the Middle Neches River Corridor provided the most suitable location for any bear restoration or management efforts in east Texas (Garner and Willis 1998, p. 5). Between 2008 and 2011, more than 500 ac (200 ha) have been restored and 1,550 ac (630 ha) have been enhanced in east Texas via the Hardwood Habitat Cooperative program.
In summary, considering Laufenberg and Clark's recent work (2014, entire document) and prior research, the following conditions exist for the Louisiana black bear population:
(1) The population sizes of the TRB, UARB, and LARB subpopulations have increased since listing, their average population growth rates are stable to increasing, and the probability of long-term persistence for the TRB and UARB subpopulations (except for one UARB modeling scenario) was greater than 95 percent. The probability of long term persistence for the LARB is unknown.
(2) The habitat occupied by the TRB, UARB, and LARB breeding subpopulations has increased; there is a more scattered distribution of breeding females between the original TRB and UARB subpopulation areas; and new satellite breeding populations are forming in Louisiana (Figure 1).
(3) A new breeding subpopulation, the TRC, that was not present at listing, now exists between the TRB and UARB subpopulations and facilitates interchange between those subpopulations.
(4) There is evidence that TRB and UARB bears have emigrated to Mississippi and have contributed to the formation of three resident breeding subpopulations that were not present at listing.
(5) There is evidence of interchange of bears between the TRB, UARB, TRC, WRB, and Mississippi subpopulations; however, the current potential for interchange between the LARB and other subpopulations is low.
(6) The overall probability of persistence for the Louisiana black bear metapopulation comprised of the TRB, TRC, and UARB subpopulations is estimated to be 0.996, assuming dynamics of those subpopulations were independent and using the most conservative population-specific persistence probabilities (
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of threatened and endangered species unless we determine that such a plan will not promote the conservation of the species. Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of a listed species; define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act; and provide guidance to our Federal, State, and other governmental and non-governmental partners on methods to minimize threats to listed species. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more
Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.
The following discussion provides a brief review of recovery planning and implementation for the Louisiana black bear, as well as an analysis of the recovery criteria and goals as they relate to evaluating the status of the taxon.
The Louisiana Black Bear Recovery Plan was approved by the Service on September 27, 1995 (Service 1995, 59 pp.). It was developed in coordination with the BBCC and its Black Bear Restoration Plan (BBCC 1997, entire document). The objective of the recovery plan is to sufficiently alleviate the threats to the Louisiana black bear metapopulation, and the habitat that supports it, so that the protection afforded by the Endangered Species Act is no longer warranted.
The four primary recovery actions outlined in the Louisiana black bear recovery plan are:
(1) Restoring and protecting bear habitat;
(2) developing and implementing information and education programs;
(3) protecting and managing bear populations; and
(4) conducting research on population viability, corridors, and bear biology. Significant accomplishments have been made on all of the primary actions for this subspecies (Service 2014, entire document). Below are examples:
Additionally, all four of these recovery actions have been identified for continued implementation in the LDWF Black Bear Management Plan (Davidson et al. 2015), the Mississippi Conservation and Management of Black Bears in Mississippi Plan (Young 2006, Appendix A), and the East Texas Black Bear Conservation and Management Plan (Barker et al. 2005, pp. 30-41).
Substantial progress has been achieved in alleviating known threats to the Louisiana black bear through increased habitat protection and restoration, improved population demographics by reduction of habitat fragmentations, increased knowledge of key population attributes (
The Recovery Plan includes the following criteria to consider the Louisiana black bear for delisting:
(1) At least two viable subpopulations, one each in the Tensas and Atchafalaya River Basins;
(2) immigration and emigration corridors between the two viable subpopulations; and
(3) long-term protection of the habitat and interconnecting corridors that support each of the two viable subpopulations used as justification for delisting.
The recovery plan defines a minimum viable subpopulation as one that has a 95 percent or better chance of
All of these criteria have been met, as described below. Additionally, the level of protection currently afforded to the species and its habitat, as well as the current status of threats, are outlined below in the
The estimated probability of persistence over 100 years for the TRB subpopulation was 1.00 and 0.96 for process-only Model 1 estimates and was 1.00 and 0.96 for Model 2 estimates (Laufenberg and Clark 2014, p. 46). The probability of persistence of the UARB subpopulation met the 95 percent probability of long-term persistence except under the two most conservative sets of assumptions (Model 2, all uncertainty) (Laufenberg and Clark 2014. p. 82). The estimated asymptotic growth rates for the TRC ranged from 0.99 to 1.02, for Model 1 and Model 2, respectively (Laufenberg and Clark 2014, p. 45). TRC persistence probabilities ranged from 0.29 to 0.99 depending on carrying capacity, the strength of the density dependence, level of uncertainty, and the treatment of unresolved fates (
Estimates of long-term viability of the TRB and the UARB subpopulations were greater than 95 percent except for the two most conservative models for the UARB (long-term viability estimates of 85 percent and 92 percent). Taken together as a system, and assuming that those subpopulations were independent, the combined viability analysis of the TRB, UARB, and TRC (using the most conservative estimates obtained for all three subpopulations) indicated that the Louisiana black bear metapopulation (TRB, TRC, and UARB) has an overall long-term probability of persistence of approximately 100 percent (0.996) (Laufenberg and Clark 2014, p. 92). The current movement of individuals between the additional subpopulations elsewhere in Louisiana and Mississippi would only improve metapopulation's chance for persistence (Laufenberg and Clark 2014, p. 94). The opportunity for movement of individuals between the TRB-TRC-UARB metapopulation and the LARB subpopulation is currently low; however, the presence of the relatively large LARB subpopulation and projections for improving habitat conditions (refer to Factor A and D discussions below) between it and the more northerly UARB subpopulation contributes to the persistence of the Louisiana black bear population as a whole.
This recovery criterion, as described in the recovery plan, calls for two viable subpopulations, one each in the Tensas and Atchafalaya River Basins. The overall goal of the recovery plan was to protect the Louisiana black bear metapopulation and the habitat that supports it so that the protection afforded by the Act is no longer warranted. Based on the above analysis, we believe the Tensas subpopulation is viable and we believe the UARB subpopulation is viable based on three model scenarios. We have high confidence in these three model scenarios. The long term persistence of the Louisiana black bear metapopulation (TRB, TRC, and UARB) is estimated to be at least 0.996 under the most conservative (
The Black Bear Restoration Plan states that little was known about Louisiana black bear corridor use and requirements at that time (BBCC 1997, p. 58). Research studies conducted near the time of the Louisiana black bear listing were primarily inconclusive regarding the identification and function of corridors. Weaver et al. (1990b, p. 347) determined that the Louisiana black bear will use tree-lined drainages in agricultural areas to travel between larger forested tracts. They also stated, however, that “research is needed to document the characteristics a corridor must possess to make it suitable for use by bears as a habitat link.” Marchinton (1995, pp. 53, 64) speculated that male Louisiana black bear movements, though influenced by habitat fragmentation patterns, were not inhibited by the level of fragmentation within his study area (which was typical of the landscape throughout the range of the Louisiana black bear). He also discussed anecdotal evidence which suggested that “adult male bears would cross open fields” (Marchinton 1995, p. 59). We believe those early studies not only challenged the continuous-habitat-linkage perception of a corridor, but also described the need for additional research to clearly characterize the qualities and functions of such corridors.
The Black Bear Restoration Plan states that “the criteria for measuring corridor effectiveness should also consider corridor function” and “research is urgently needed to determine the corridor functions, their size and shape, and their actual effectiveness” (BBCC 1997, p. 58). To assess the function and role of corridors in Louisiana black bear dispersal and genetic exchange, Laufenberg and Clark (2014, pp. 24-31) conducted a movement, or step selection, study throughout a large portion of the range of the Louisiana black bear. In regard to facilitating Louisiana black bear movement between subpopulations, their findings indicated that, while contiguous forested habitat linkages can be beneficial to bears moving through a fragmented landscape, hypothetical forested corridors “were not more effective than the broken habitat matrix that surrounded many of the subpopulations” (Laufenberg and Clark 2014, p. 85). Their study also documented interchange occurring “from the UARB to the TRB by way of the TRC” (Laufenberg and Clark 2014, pp. 2, 84). Such interchange supports the assertion by Laufenberg and Clark (2014, p. 90) that the presence of multiple satellite populations of breeding bears on the landscape may be more effective in establishing and/or maintaining connectivity between the larger subpopulations than the presence of contiguous forested linkages.
Most such satellite populations exist today as a result of a multi-agency project undertaken specifically to reduce demographic isolation of the existing TRB and UARB subpopulations. That translocation project, initiated in 2001, was based on the assumption that relocated females with cubs would remain at a new location (not currently supporting a Louisiana black bear subpopulation) and adult females would be discovered by males traveling through the area. From 2001 through 2009, 48 females and 104 cubs were moved (primarily from the TRB) to a complex of public lands located between the TRB and the UARB subpopulations. Though most relocated females and their offspring remained within the vicinity of their release site (creating a new subpopulation that reduced the distance between existing subpopulations), a few dispersed to various habitat patches creating the satellite populations that now facilitate interchange between the larger subpopulations.
As part of the recovery process, HRPA maps were developed by a collaborative multi-agency and organization group (Federal, State, local government partners, and nonprofit organizations including but not limited to the Natural Resources Conservation Service (NRCS), LDWF, BBCC, Louisiana State University, the Louisiana Nature Conservancy, and the Service) to design and create landscape features to support the habitat-block/satellite-population corridor concept that facilitates such interchange. The Louisiana black bear HRPA maps are regularly updated; the most recent update was in the spring of 2011. Those maps are designed for use with conservation programs administered by NRCS) (
Similar conservation priority maps have been developed and are currently in use in Mississippi (Ginger et al. 2007). The TPWD and its partners have developed Land Conservation Priority Maps for East Texas and a Hardwood Habitat Cooperative that offers a cost-share program to landowners seeking to restore or enhance hardwood habitat on their lands. In East Texas, more than 500 ac (200 ha) have been restored and 1,550 ac (630 ha) were enhanced via the Hardwood Habitat Cooperative program between 2008 and 2011.
The Louisiana Black Bear Recovery Plan states that corridors providing cover may facilitate the movement of bears between highly fragmented forest tracts. It also states, however, that the Louisiana black bear has been known to
In summary, the current distribution of habitat patches and breeding subpopulations have been documented to provide sufficient connectivity for interchange to occur between the UARB and the TRB subpopulations as detailed in Criterion 2 (Laufenberg and Clark 2014, pp. 83-84). A substantial amount of forested habitat within the Louisiana black bear HRPA system is perpetually protected through conservation easements (on private lands) and fee-title purchases (public lands) for the purpose of providing wildlife habitat (which includes Louisiana black bear habitat (Figure 2). All available data indicate that current environmental laws and regulations (in particular, the CWA) are sufficient to provide long-term protection of the Louisiana black bear corridor system. In fact, relating to the Louisiana black bear, data clearly demonstrate that the CWA regulatory program not only provides adequate protection for its habitat, but has also resulted in habitat gains due to compensatory mitigation requirements (see Table 11 and discussion under Factor A, below). The “Swampbuster” provisions of the Food Security Act of 1985 provide additional protections against the conversion of forested wetlands for agricultural purposes. There is no available information to suggest that either of these regulatory protections would be weakened or eliminated in the foreseeable future.
We have no information to suggest that the current trend of habitat gains within the LMRAV and the HRPA from voluntary landowner-incentive based programs and environmental regulations would not continue for the foreseeable future (Tables 2, 3, 7, 8, and 10). A substantial acreage of the habitat that supports the main breeding subpopulations in the TRB and UARB is in public ownership (
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. To list a species, we must first evaluate whether that species may be an endangered species or a threatened species because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. The Act does not define the term “foreseeable future.” For the purpose of this rule, we define the foreseeable future to be the extent to which, given the amount and substance of available data, we can anticipate events or effects, or reliably extrapolate threat trends, such that we reasonably believe that reliable predictions can be made concerning the future as it relates to the status of the Louisiana black bear. A recovered species is one that no longer meets the Act's definition of a threatened or an endangered species.
The following analysis examines all five factors currently affecting, or that are likely to affect, the Louisiana black bear within the foreseeable future.
The final rule that listed the Louisiana black bear as a threatened subspecies states that it “meets the criteria for protection under the Act on the basis of past habitat loss alone” (57 FR 588). It also identified the threat of further habitat loss of occupied habitats due to conversion to agriculture or other non-timber uses on top of past severe losses that occurred (historical modification and reduction and reduced quality of habitat, primarily as a result of conversion to agriculture), the lack of protection of privately owned woodlands in the north Atchafalaya and Tensas River Basins, and inadequacy of existing regulatory protections to protect Louisiana black bear habitat (see Factor D for regulatory mechanism discussion).
We present multiple habitat assessment metrics to establish trends within the LMRAV and the Louisiana black bear HRPA. This relatively high level of redundancy is provided to demonstrate that habitat trends have been accurately identified, and to compensate for the limitations in geographic information system (GIS) technology at the time of listing of the Louisiana black bear. GIS technology was in its infancy in the 1990s, so our ability to accurately delineate the extent and distribution of Louisiana black bear habitat at the time of listing was determined from a best professional estimate based on hand-drawn maps. In addition, the geographic areas used for those initial estimates were not often well described and varied by study, making successive temporal comparisons quite difficult. Advances in technology, including GIS and remotely sensed data (
According to Haynes (2004, p. 172), the forested wetlands of the LMRAV have been reduced from historic estimates of 21 to 25 million acres (8.5 to 10 million ha) to a remnant 5 to 6.5 million acres (2 to 2.6 million ha). Significant increases in soybean prices in the late 1960s and early 1970s provided the impetus for the large-scale conversion of forested habitat to agriculture, which was facilitated by improved flood control, drainage, and technology (Wilson et al. 2007, pp. 7-8). Allen et al. (2004, p. 4) concurred that the primary cause of bottomland hardwood loss has been conversion to agricultural production. According to Creasman et al. (1992) as cited by Haynes (2004, p. 170), approximately 78 percent of the bottomland forests in Arkansas, Louisiana, and Mississippi had been lost to conversion at the time of listing. When the bear was listed in 1992, the Service recognized that the rate of loss of bear habitat had leveled off (Service 1992, p. 592). Since that time (1990-2010), forested habitat within the LMRAV has increased (Oswalt 2013, p. 4).
The Black Bear Restoration Plan states that the delisting criteria standard of long-term habitat and corridor protection could involve a projection of future habitat trend based on historical trends in acreage and habitat type/quality (BBCC 1997, p. 58). In that regard, Schoenholtz et al. (2001, p. 612; 2005, p. 413) described a “promising or encouraging” trend in the annual increase of afforestation (planting of trees to create forested habitat) in the LMRAV. Available data indicates that over the past three decades, forest restoration in the LMRAV portions of Louisiana, Mississippi, and Arkansas has increased dramatically, and has led to a significant removal of land from agricultural production for the purpose of hardwood forest establishment (Gardiner and Oliver 2005, p. 243; and Oswalt 2013, p. 6). In some areas, these gains have been especially noteworthy. For example, West Carroll Parish, Louisiana, experienced a 92 percent loss of forested area from 1950 (45 percent forest) to 1980 (8 percent forest), and in 2013, the parish was approximately 18 percent forested (Oswalt 2013, p. 4).
As stated in Table 1, breeding habitat for the bear at the time of listing was roughly 340,400 acres. The total has grown based on implementation of recovery actions with numerous partners to more than 1,800,000 acres by the end of 2014. This is approximately five times the amount of area occupied by breeding subpopulations than was occupied at the time of listing. Examples of actions that have helped reduce habitat loss or improve suitable habitat for the Louisiana black bear are discussed below.
A major factor in this positive habitat trend is the success of incentive-based private land restoration programs, such as WRP, which was established by the Food Security Act of 1990. The WRP has been “perhaps the most significant and effective wetland restoration program in the world” (Haynes 2004, p. 173). According to Haynes (2004, p. 173), within 12 years of the Louisiana black bear being listed as a threatened species, an estimated 450,000 to 550,000 ac (182,000 to 222,000 ha) of BLH forest had been restored in the LMRAV. Since 1992, more than 148,000 ac (60,000 ha) of land has been permanently protected and/or restored in the HRPA via the WRP program (mostly in the TRB and UARB areas) (Table 2). The entire 148,000 ac (60,000 ha) of restored land benefits movement between populations, with approximately 97,000 ac (39,000 ha) directly benefitting breeding populations (Table 2). The use of the Louisiana Black Bear Habitat Restoration Planning Maps in conjunction with the WRP has not only increased the total amount of available Louisiana black bear habitat, but has also allowed us and our partners to directly focus on addressing the recovery criteria. When WRP permanent easement lands are added to the habitat protected on Federal and State NWRs or WMAs, mitigation banks, and the numerous Corps fee title and easements (as discussed in detail under the Factor D section), approximately 638,000 ac (258,000 ha) have been permanently protected and/or restored within the HRPA in Louisiana (Table 3). Although not permanently protected, an additional 122,000 ac (49,000 ha) of
Many of the remaining forested wetland areas (as we have detailed) have been protected within our National Wildlife Refuge System, in National Forests, in State WMAs, and on U.S. Department of Agriculture WRP or other conservation easement sites (King et al. 2006). The Partners for Fish and Wildlife Program focuses on conservation delivery adjacent to or nearby such protected areas to help meet our strategy of expanding main conservation areas and linking habitat by reducing fragmentation. Numerous projects administered through this program have provided direct habitat benefits for the Louisiana black bear. Additional details regarding the effectiveness of this program can be found in the Factor D section, titled
It should also be noted that in Louisiana there are approximately 480,000 ac (195,000 ha) of public lands (
In summary, there are about 460,000 ac (186,000 ha) of Federal- and State-owned conservation lands managed for wildlife in Louisiana and Mississippi that directly support Louisiana black bear subpopulations. If this proposed delisting is finalized, those areas would continue to remain permanently protected. Since listing, we have gained more than 4,000 ac (1,600 ha) of Federal land in Mississippi that benefit bears, acquired new NWRs (such as Bayou Teche NWR in Louisiana in 2001), and expanded others. In addition to the permanently protected habitat in public ownership, we have worked with States and landowners to secure 148,000 ac (60,000 ha) of permanent WRP easements. Regardless of whether the bear is delisted, these voluntary permanent easements protect wetlands and ensure that habitat will be maintained (see Factor D for associated regulatory protections). In addition to the approximately 638,000 ac (258,000 ha) of permanently protected habitat (refer to Table 3), there are roughly 122,000 ac (49,000 ha) of habitat enrolled in CRP (with 10- to 15-year contracts), which also provides benefits to the Louisiana black bear.
Forested wetlands throughout the range of the Louisiana black bear habitat that are not protected through direct public ownership or easements on private lands will continue to receive protection through Section 404 of the CWA and the “Swampbuster” provisions of the Food Security Act of 1985. Forested habitat trends in the LMRAV indicate that those regulations have provided adequate long-term protection of Louisiana black bear habitat since the listing of the Louisiana black bear in 1992. The trajectory of BLH forest loss in the LMRAV has been reversed with substantial gains in forested habitat being realized within both the LMRAV and the more restrictive HRPA.
To further evaluate forested wetland habitat trends within the HRPA, we employed a digital GIS analysis of landscape changes in which classified habitat types were monitored over time. To increase the confidence level of that analysis, we evaluated two independent sets of imagery (image dates were based on availability). The results of both methodologies (shown in Tables 7 and 8 below) demonstrate significant gains in potential bear habitat within the Louisiana black bear HRPA in recent decades. Those results are consistent with government agency records for forested habitat restoration through programs such as WRP, CRP, and wetland mitigation banking.
In 1992, when the Louisiana black bear was listed, the lack of habitat protection within the Atchafalaya River Basin was considered a significant component of the overall habitat loss threat to Louisiana black bears. The final rule that listed the Louisiana black bear as a threatened subspecies states that “privately owned lands of the Atchafalaya River Basin south of U.S. 190 may remain exposed to threat from clearing and conversion to agricultural uses” (Service 1992, p. 591). It further states that approximately one-half of the forests in the northern Atchafalaya River Basin and the Tensas River Basin are “privately owned and under no protection through conservation easements or acquisition” (Service 1992, p. 591). The Corps' Feasibility Study for the Atchafalaya Basin Floodway System projected the “conversion of about 200,000 ac [81,000 ha] of forestland to agricultural land” within the Lower
Developmental and environmental provisions of those easements prohibit the conversion of land from existing uses (
Although trends related to agricultural conversion of forested land have been reversed since the listing of the Louisiana black bear, another possible source of future habitat loss may be development associated with increased urbanization. To assess potential future habitat losses associated with development, we acquired population trend projections for all of the parishes within the Louisiana black bear HRPA. Population projections are available through year 2030; see Table 9. The Louisiana Parish Population Projections Series (2010-2030) were developed by Louisiana State University-Department of Sociology for the State of Louisiana, Office of Information Technology, Division of Administration (
Of the 17 parishes included within our Louisiana Black Bear Habitat Restoration Planning Area, 15 were projected to experience human population declines, including several that may experience substantial reductions (population declines of 10- 23 percent). St. Landry and St. Martin Parishes were the only parishes within our analysis polygon with projected population growth over the next 15 years (though increases of only 3.88 and 5.07 percent, respectively, are expected). It should be noted that significant portions of those parishes, including their largest urban areas where most future population growth and associated development would be expected, occur outside of the HRPA. In summary, based on our review of the available human population projections, it appears that there is an extremely low threat of future Louisiana black bear habitat loss from urban expansion or other types of development.
There is also a substantial amount of private land that supports Louisiana black bears, but that is not encumbered by conservation easements. To conservatively estimate long-term habitat availability for the Louisiana black bear, those lands were excluded from much of our analyses (Tables 2, 3, 5, and 6). It should be noted, however, that those lands largely consist of forested habitats that are occasionally to frequently flooded and would not be suitable for conversion to agriculture or development without the construction of significant flood control features. The construction of such features or other activities that would eliminate or reduce existing wetland habitat (including forested wetlands), and would be regulated via The Food Security Act of 1985 and/or Section 404 of the CWA (refer to the
When we listed the Louisiana black bear in 1992, we did not consider disease or predation to be limiting or threatening to the Louisiana black bear (57 FR 588). Several diseases and parasites have been reported for black bears but are not considered to have significant population impacts (Pelton 2003, p. 552). Limited information has been collected in the wild on diseases or parasites of black bears and causes of cub mortality (LeCount 1987, p. 75). Natural predation has been documented as a result of cannibalism by other bears and cub predation by other animals (LeCount 1987, pp. 77-78; Rogers 1987, p. 54; Pelton 2003, p. 552). Rogers (1987, pp. 53-54) documented four yearling bears that had been eaten (including one that had been eaten by its mother) but could not determine if they had been killed or scavenged and noted that small bears in poor condition would be more susceptible to predation. Cannibalism rates are not likely to regulate population growth (Rogers 1987, p. 55). It is unknown how many juvenile males are killed (rather than dispersed from the area) by adults, but that mortality probably has little effect population growth due to the polygamous (having more than one mate) mating system of bears (Rogers 1987, p. 55). O'Brian's (2010, p. 17), literature review of black bear disease indicated bears may be susceptible to a number of parasitic, bacterial, and viral diseases but none are likely to cause high morbidity or mortality. Similarly, Pelton (1982, p. 511) listed the following diseases of black bears—liposarcoma and unidentified tumors, Elokomin fluke, rabies, and several bacterial and parasitic infestations—noting that none appeared to have significant effects on population regulation and LeCount (1987, p. 79) did not believe disease represented a substantial mortality factor for bear populations. Disease vectors are monitored by the LDWF whenever bears are handled.
The LDWF Louisiana Black Bear Management Plan (Plan) was finalized in 2015 (Davidson et al. 2015). The management objective for that Plan is to maintain a sustainable black bear population in suitable habitat and has the following key requirements: Sufficient habitat available within dispersal distance, maintaining connectivity among subpopulations, and continued monitoring of subpopulation demographics (Davidson et al. 2015, p. 2). The LDWF identified three bear management actions it will implement: (1) Continued public education and outreach; (2) minimizing human-bear conflicts; and (3) bear harvest as a management action if such actions do not impede sustainability of bears (as determined by the ongoing population monitoring program as described in the LDWF Black Bear Management Plan (Davidson et al. 2015, p. 32-33, 55-56).
The MDWFP is responsible for administering the many State-owned wildlife management areas in Mississippi. The WMAs within the MAVU include Leroy Percy WMA (2,664 ac (1,078 ha)), Shipland WMA (4,269 ac (1,728 ha)), Copiah County WMA (6,830 ac (2,764 ha)), and O'Keefe WMA (5,918 ac (2,395 ha)). Those areas are managed according to the MDWFP Strategic Plan (MDWFP undated, p. 17) and are actively managed to provide for a diversity of wildlife species. The management goals are to manage agency-owned lands for the long-term conservation of wildlife habitat and for multiple user groups to enjoy diverse outdoor recreational opportunities that are consistent with natural resource management goals.
The National Wildlife Refuge System Improvement Act of 1997 requires that every refuge develop a Comprehensive Conservation Plan (CCP) and revise it every 15 years, as needed. CCPs identify management actions necessary to fulfill the purpose for which an NWR was enacted. CCPs allow refuge managers to take actions that support State Wildlife Action Plans, improve the condition of habitats, and benefit wildlife. The current generation of CCPs will focus on individual refuge actions that contribute to larger, landscape-level goals identified through the Landscape Conservation Design process. CCPs address conservation of fish, wildlife, and plant resources and their related habitats, while providing opportunities for compatible wildlife-dependent recreation uses.
An overriding consideration reflected in these plans is that fish and wildlife conservation has first priority in refuge management, and that public use be allowed and encouraged as long as it is compatible with, or does not detract from, the Refuge System mission and refuge purpose(s). Each NWR within the Louisiana black bear range addresses management actions for maintaining appropriate bear habitat on their lands as follows: Tensas River NWR (Service 2009a, pp. 77-78); Bayou Teche NWR (Service 2009b, p. 34); Atchafalaya NWR (Service 2011, pp. 68-75); Grand Cote NWR (Service 2006a, p. 54); Upper Ouachita NWR (Service 2008, pp. 85-86); Lake Ophelia NWR (Service 2005a, pp. 49-50); Bayou Cocodrie NWR (Service 2004, p. 40); Hillside, Matthews Brake, Morgan Brake, Panther Swamp, Theodore Roosevelt, and Yazoo NWRs (Service, 2006c, pp. 92-93); Coldwater and Tallahatchie NWRs (Service 2005b, pp. 78-79); and St. Catherine Creek NWR (Service 2006b, p. 58).
Participating landowners may request other prohibited uses such as haying, grazing, or harvesting timber. When evaluating compatible uses, the NRCS evaluates whether that proposed use is consistent with the long-term protection and enhancement of the wetland resources for which the easement was established and Federal funds expended. Requests may be approved if the NRCS determines that the activity both enhances and protects the
According to the WRP Manual, prior to making a decision regarding easement modification, the Natural Resources Conservation Service (NRCS) must:
(1) Consult with the Service;
(2) evaluate any modification request under the National Environmental Policy Act (NEPA);
(3) investigate whether reasonable alternatives to the proposed action exist; and
(4) determine whether the easement modification is appropriate considering the purposes of WRP and the facts surrounding the request for easement modification or termination.
Any WRP easement modification, must:
(1) Be approved by the Director of the NRCS in consultation with the Service (the National WRP Program Manager must coordinate the consultation with the Service at the national level);
(2) not adversely affect the wetland functions and values for which the easement was acquired;
(3) offset any adverse impacts by enrolling and restoring other lands that provide greater wetland functions and values at no additional cost to the government;
(3) result in equal or greater ecological (and economic) values to the U.S. Government;
(4) further the purposes of the program and address a compelling public need; and
(5) comply with applicable Federal requirements, including the Act, NEPA (42 U.S.C. 4321
The WRP manual states that “NRCS will not terminate any of its easements, except for a partial termination that may be authorized as part of an easement modification request. . .in which additional land will be enrolled in the program in exchange for the partial termination.” Therefore, based on our assessment of these requirements, the termination of an entire WRP easement, or a reduction in the total acreage of WRP lands via authorized modifications, appears highly improbable. In addition, we have partnered with NRCS to administer WRP in Louisiana since the inception of that program in 1992. Following a comprehensive review of our local files and a search of national WRP records, we have been unable to find a single instance of a WRP easement being terminated in the history of that program (which includes nearly 10,000 projects on approximately 2 million ac (800,000 ha) of land nationwide).
In response to the considerable wetland habitat conversion throughout the LMRAV, and fueled by the ongoing clearing of the Lake Long tract, the Avoyelles Sportsmen's League and partnering organizations sued the Corps and EPA for allegedly failing to properly enforce Section 404 of the CWA. On March 12, 1981, a U.S. District Court (Western District of Louisiana-Alexandria Division) ruled in favor of the plaintiffs with a decision that would substantially alter the regulatory scope and enforcement authority of the Corps and EPA under the CWA. The decision noted: (1) The term “wetland vegetation” was more broadly defined which would ultimately result in the reclassification of many areas that were previously considered non-wetland (such as the Lake Long tract), and (2) the Corps' and EPA's jurisdiction were expanded beyond the limited scope of dredge and fill regulation to include all activities that may result in the placement or redistribution of earthen material, such as mechanized land clearing
To summarize, though the CWA was enacted in 1972, it was a full decade later before the authority and associated protection that it affords to forested wetlands was legally recognized. In the interim, and in the decade prior, the BLH forests of the LMRAV were decimated (Creasman et al. 1992; Haynes 2004, pp. 170, 172) ultimately constituting the primary threat that warranted the listing of the Louisiana black bear (Service 1992, p. 592). After
Mitigation banking has been an additional factor responsible for alleviating wetland losses associated with the Corps' wetland regulatory program. Persons obtaining a wetland development permit from the Corps (pursuant to Section 404 of the CWA and/or Section 10 of the Rivers and Harbors Act) that authorizes impacts to waters of the United States, including wetlands, are typically required to compensate for wetland losses in a manner that ensures project implementation would result in no net loss of wetlands. Mitigation banks are intended to provide a mechanism to assist permit applicants, who may be unable or unwilling to implement an individual compensatory mitigation project, in complying with those mitigation requirements. The design and implementation of compensatory wetland mitigation projects (particularly wetland mitigation banks) are accomplished through a coordinated effort among the Corps, the Service, and other State and Federal environmental resource management agencies, and are individually authorized by a mitigation banking instrument (MBI). With a high degree of specificity, MBIs mandate restoration practices, contingencies and remedial actions, long-term monitoring and maintenance, adherence to performance standards, financial assurances, and the establishment of perpetual conservation servitudes. Without exception, wetland mitigation banks are restored and managed with the intent of providing the full array of wetland functions and values (such as providing habitat for a multitude of wildlife species, which typically includes the Louisiana black bear).
For permitted projects that would impact Louisiana black bear habitat, the Service routinely requests that any associated wetland mitigation project (or wetland mitigation bank option) be sited in a location, and conducted in a manner, that would result in the restoration of suitable Louisiana black bear habitat including all of the various functions that would be potentially impacted by the corresponding development project (
Our analysis of impacts and mitigation associated with the Corps' wetland regulatory program suggests that substantially more forested habitat is restored through compensatory wetland mitigation than is eliminated via permitted wetland development projects (Table 11). That analysis was conducted over a 5-year period spanning July 1, 2009 through July 31, 2014. According to personnel within the Corps wetland regulatory program, a standardized electronic database to track permitted projects was not developed until 2004, and was not reliably used by permit analysts until 2009. Therefore, there is no reliable database for which to query such records prior to that time. It should also be noted that the corresponding table displays permitted wetland losses and approved wetland mitigation banks that would be available to offset those losses. We were unable to obtain the baseline data necessary to calculate a loss-to-gain wetland habitat ratio. However, personnel within the Corp's wetland regulatory program evaluated their records for specific mitigation requirements associated with each permitted activity and estimated that the ratio of wetland habitat gains from compensatory mitigation to wetland habitat losses attributed to permitted projects is 6:1 (Stewart 2014).
The results of our GIS landscape analysis indicate that the recent (post 1990) positive trends in forested habitat extent within the LMRAV (as documented above) have also been realized within our more focused HRPA. Regardless of our methodology (1-meter DOQQ analysis or 30-meter NLCD analysis), the analyses yielded similar results. There has been a significant gain in the acreage of potential Louisiana black bear habitat within the HRPA since the 1992 listing of the Louisiana black bear (Tables 7 and 8). Our review of available literature and research, in conjunction with our own analyses, suggest that those gains are the result of both voluntary private land restoration programs (mainly CRP and WRP) and wetland regulatory mechanisms (primarily Section 404 of the CWA).
The documented trends in Louisiana black bear population growth, population viability, and increase in the extent of forested habitat further validate the assertion that existing environmental regulatory mechanisms and conservation measures are sufficient for the Louisiana black bear. We do not have any other data indicating that current regulatory mechanisms are inadequate to provide long-term protection of the Louisiana black bear and its habitat. Accordingly, we conclude that existing regulatory mechanisms are adequate to address the threats to the Louisiana black bear posed by the other listing factors, especially habitat loss.
Regulatory mechanisms that currently protect Louisiana black bear habitat through conservation easements or ownership by State and Federal agencies will remain in place (
When we listed the Louisiana black bear, the Service discussed what at the time appeared to be a threat from hybridization resulting from the introduction of bears from Minnesota (57 CFR part 588). We noted that the threat from hybridization at the subspecies level might not be a cause for significant concern and acknowledged that the subpopulations in the TRB and UARB were possibly intraspecifically hybridized and mostly unchanged (genetically) because of the low probablitity of reproductive isolation since they were relatively close geographically. Reproductive isolation is required for an extended period for the evolutionary process of differentiation to operate (57 CFR part 588). At that time, genetic investigations did not identify real differences in subpopulations and the Service noted that, to the extent a pure genetic heritage is a realistic concept when applied to a subspecies not likely to be reproductively isolated, the threat may have existed. Subsequent studies have revealed differing results on the extent of hybridization. The most recent unified analyses of genetic data by Laufenberg and Clark (2014, pp. 50-58) found varying levels of genetic structure among pairs of subpopulations and identified five genetically distinct groups (Laufenberg and Clark 2014, p. 60) and an affinity between Minnesota and UARB subpopulations (Laufenberg and Clark 2014, p. 84).
The analyses concluded that differentiation between the Louisiana black bear subpopulations within the LMRAV can be explained as the result of restricted gene flow, accelerated genetic drift, and differing levels of genetic introgression as a result of the Minnesota introductions (Laufenberg and Clark 2014, p. 84). The results also show some interchange of Louisiana black bear subpopulations with Arkansas populations and found affinities to the WRB subpopulation and Minnesota bears. The level of genetic affinity or differentiation between the Louisiana black bear subpopulations and the WRB subpopulation and Minnesota bears is not sufficient evidence for determining taxonomic status (Laufenberg and Clark 2014, p. 85). Thus, while recent genetic analyses results did indicate the existence of some effects of the Minnesota reintroductions (as postulated at listing), those effects do not seem to be great enough to pose a significant threat to this subspecies' genetic integrity by hybridization as speculated at listing. In fact, genetic exchange that is occurring among bears from Louisiana, Mississippi, and Arkansas can be considered a positive genetic and demographic contibution to the Louisiana black bear (Laufenberg and Clark 2014, p. 85) (see the Distribution and Taxonomy discussion of the Species Information Section).
Davidson et al. (2015, p. 15) described the Louisiana black bear as susceptible to drowning, maternal abandonment of cubs, and climbing accidents; but the remaining leading cause of black bear mortalities is human-related (Pelton 2003, p. 552; Simek et al. 2012, p. 164; Laufenberg and Clark 2014, p. 76). Increased movement during food shortages substantially increases their chances for human encounters and human-related mortality (Rogers 1987, p. 436; Pelton 2003, p. 549). These mortality rates are suspected to be greater for yearling and subadult black bear males dispersing from the family unit, and are probably the result of starvation, accidents (
Since listing in 1992, at least 246 black bears have been killed in vehicular collisions in Louisiana (USGS et al. 2014) and 11 bears killed in Mississippi (Rummel 2015, personal communication) making this the leading known cause of death for Louisiana black bears (Davidson et al. 2015, p. 15). In spite of these numbers, black bear populations have increased over this same time period. Black bear population growth in conjunction with urban expansion and habitat fragmentation has resulted in the increased availability of anthropogenic foods sources (Davidson et al. 2015, p. 15). Conflict management of black bears exhibiting nuisance behavior can result in mortality and, in the rare case where a bear cannot be left in the wild (as a result of nuisance behavior resulting in a demonstrable threat to human safety), it may be captured and placed into permanent captivity by management agencies or humanely euthanized. LDWF personnel have euthanized 15 black bear since 1992 (Davidson et al. 2015, p. 15).
The listing rule for the Louisiana black bear (57 FR 588) identified illegal kill as a potential threat to this species that could not be ruled out until better data could be obtained. The majority of illegal kills have been the result of direct poaching; however, there have been 3 documented mortalities incidental to the use of snares in Louisiana for nuisance animal control (Davidson, M. 2015, LDWF, personal communication). Since 1992, there have been 32 documented illegal bear killings in Louisiana (Davidson et al. 2015, p. 15) and 9 documented in Mississippi (Rummel 2015, personal communication). If all other documented deaths of unknown causes are assumed to be the result of illegal taking, a total of 75 bears have been documented as killed since listing (USGS et al. 2014). Taken altogether, since Federal listing, approximately 300 individual Louisiana black bears are known to have been killed as a result of anthropogenic conflicts in Louisiana (USGS et al. 2014), and in Mississippi, 22 bears have been reported killed (Rummel 2015, personal communication), or approximately 13 bears per year have succumbed to anthropogenic causes of mortality since 1992 in Louisiana (Davidson et al. 2015, p. 16) and approximately 1 bear per year in Mississippi (Rummel 2015, personal communication).
Hurricanes and tropical storms can affect forested habitat throughout the LMARV. The potential effects of any tropical storm event will depend on where it makes landfall and what area is receiving the brunt of the wind and force of the cyclone. They can also have additional negative effects to the LARB subpopulation due to its proximity to the coast; however, they are deemed to be a low magnitude because of the Louisiana black bear's ability to quickly adapt and move while using a variety of habitats. Murrow and Clark (2012) studied the impacts of Hurricanes Katrina and Rita on habitat of the LARB subpopulation. They did not detect in their research any significant direct impacts to forested habitat. For example, suitable bear habitat was found to have decreased only by 0.9 percent (from 348 to 345 square kilometers (km
The Intergovernmental Panel on Climate Change (IPCC) concluded that warming of the climate system is unequivocal (IPCC 2014, p. 3). The more extreme impacts from recent climate change include heat waves, droughts, accelerated snow and ice melt including permafrost warming and thawing, floods, cyclones, wildfires, and widespread changes in precipitation amounts (IPCC 2014, pp. 4, 6). Due to projected climate-change associated sea level rise, coastal systems and low-lying areas will increasingly experience adverse impacts such as submergence, coastal flooding, and coastal erosion (IPCC 2014, p. 17). In response to ongoing climate change, many terrestrial, freshwater, and marine species have shifted their geographic ranges, seasonal activities, and migration patterns (IPCC 2014, p. 4). Species that are dependent on specialized habitat types or are limited in distribution will be most susceptible to future impacts of climate change. Many species will be unable to relocate rapidly enough to keep up with their climate niche under mid- and high-range rates of climate change. The climate velocity (the rate of movement of the climate across the landscape) will exceed the maximum velocity at which many groups of organisms, in many situations, can disperse or migrate, under certain climate scenarios. Populations of species that cannot migrate at effective speeds will find themselves in unfavorable climates, unable to reach areas of potentially suitable climate. Species with low dispersal capacity (such as plants, amphibians, and some small mammals) could be especially vulnerable (IPCC 2014, p. 275).
Biological and historical evidence suggests that the Louisiana black bear is well-adapted to endure the predicted effects of climate change throughout its range. As stated above, Louisiana black bears inhabit more than 1.4 million ac (approximately 576,000 ha) of habitat in all or portions of 21 Louisiana parishes and 6 Mississippi counties. It is a generalist that uses a variety of habitat types within and adjacent to the LMRAV, including forested wetlands, scrub-shrub, marsh, spoil banks, and upland forests (including upland hardwoods and mixed pine-hardwood forests). On a larger scale and to make a comparison to the Louisiana black bear's capability to use many habitat types, American black bears (in the other portions of the United States and Canada) are known to inhabit vast mountainous areas, coastal plains, chaparral and pinyon-juniper woodlands (
The Louisiana black bear is capable of efficiently traversing the landscape, and individual bears incorporate relatively large expanses of habitat within their respective home ranges (which varies based on gender and subpopulation). Home ranges vary from approximately 1,000 ac [400 ha] to 84,000 ac [34,000 ha] (Beausoleil 1999, p. 60; Wagner 1995, p. 12). Numerous long-distance movements of the Louisiana black bear have been confirmed, and there is documented evidence of dispersal throughout most of their current range (Figure 1, Davidson et al. 2015, p. 24). In the event habitat is lost due to climate change effects (such as extreme flooding or drought), Louisiana black bears have demonstrated the ability not only to move at a relatively rapid pace to more suitable areas, but also to adapt to a wide range of potential habitats and food sources.
Habitat supporting the LARB subpopulation (population range from 136 to 194 adult bears (Laufenberg and Clark 2014, p. 45)) of the Louisiana black bear is more vulnerable to the impacts of global climate change than other subpopulations due to its occurrence within low-elevation coastal habitats that are susceptible to flooding from extreme rainfall events, significant tidal surges (including those associated with tropical weather systems), and riverine flooding. That subpopulation occurs entirely within the Louisiana Coastal Zone which was delineated by the Louisiana Department of Natural Resources-Office of Coastal Management (LDNR-OCM) based on storm surge data, geology, elevation, soils, vegetation, predicted subsidence/sea level rise, and boundaries of existing coastal programs (LDNR-OCM 2010, pp. 54-60). Based on the current sea level rise estimates (
The Service estimated that more than 35,000 ac (14,000 ha) of lakes and cypress-tupelo swamps would convert to higher elevation forests within the ARB by the year 2030 (LeBlanc et al. 1981, p. 65). This prediction is supported by studies documenting increased sedimentation within the Basin (Hupp et al. 2008, p. 139). Sedimentation increases elevation, and areas that were once wet will be naturally colonized with vegetation that will ultimately result in upland forests (Hupp et al. 2008, p. 127) that are more suitable for bear foraging and habitation. Even if the most conservative models were exceeded and the entire coastal zone of Louisiana were subject to permanent inundation in the future (prior to projected habitat changes in the Atchafalaya Basin), only a relatively small proportion of Louisiana black bears and their habitat would be affected. Specifically, more than 80 percent of the Louisiana black bear HRPA, more than 90 percent of Louisiana black bear breeding habitat, 85 percent of Louisiana black bear critical habitat, and 70 percent of the Louisiana black bear population occur outside of the Louisiana Coastal Zone.
A specific illustration of the resilience of the Louisiana black bear to survive and adapt to extreme climatic events occurred during the recent operation of the Morganza Floodway. The UARB subpopulation occupies a 175-square-mile (453-square-km) area within and adjacent to the Morganza Floodway. Much of the area inhabited by the UARB subpopulation is subject to extreme flooding, especially when Mississippi River stages rise to levels that warrant the Corps' operation of the Morganza Floodway (which has only occurred twice, in 1973 and 2011). The 2011 operation of the Morganza Flood Control Structure coincidentally occurred during an ongoing 6-year
Under section 3 of the Act, a species is endangered if it is “in danger of extinction throughout all or a significant portion of its range” and threatened if it is “likely to become endangered in the foreseeable future throughout all or a significant portion of its range.” We have carefully assessed the best scientific and commercial information available regarding the threats faced by the Louisiana black bear
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Having determined that the Louisiana black bear is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the Louisiana black bear is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “Significant Portion of its Range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid Distinct Population Segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.
The procedure for analyzing whether any portion is a SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species and no SPR analysis will be required. If the species is neither
When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant” and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (
Applying the process described above, we have already determined that the species is no longer endangered or threatened throughout its range. We next evaluated the range of this subspecies to determine if any areas could be considered a significant portion of its range. One way to identify portions for further analyses is to identify any natural divisions within the range that might be of biological or conservation importance. While there is some minor variability in the habitats occupied by the Louisiana black bear across its range, the basic ecological components required for the species to complete its life cycle (
We next examined whether any threats are geographically concentrated in some way that would indicate the Louisiana black bear would be in danger of extinction, or likely to become so in that area. In Louisiana, both the Louisiana and Mississippi black bear breeding populations occur in the LMRAV. These subpopulations make up the majority of the overall Louisiana black bear bear population and all face the same type of potential threats—primarily habitat conversion. We have already discussed that trends in that threat have been significantly reduced and in some cases reversed (see Factors A and D). Estimates of long-term viability of the TRB and the UARB subpopulations were greater than 95 percent except for the two most conservative models for the UARB (long-term viability estimates of 85 percent and 92 percent).
Through our review of potential threats we identified the LARB subpopulation as one that that may be at greater risk of extinction due to its additional threats from future anticipated development and sea level rise. We thus considered whether this subpopulation may warrant further consideration as a significant portion of the Louisiana black bear range. The LARB is located within the coastal area of Louisiana in St. Mary, Iberia, and Vermillion Parishes in forested habitat similar to other Louisiana black bear subpopulations. That subpopulation is separated from the other subpopulations and the habitat between them within the Basin is believed to be too wet currently to support breeding females, although bears have been observed along the higher areas on both sides of the Basin. The probability of interchange between the LARB and the other subpopulations is low (Laufenberg and Clark 2014, p. 93); however, reports of bear live-captures, known natal dens, and confirmed sightings indicate bears can and do move out (at least temporarily) of this subpopulation (Figure 1, Davidson et al. 2015, p. 24). Dispersal by male bears of more than 100 miles by males is not unusual and combined with the documented occurrences of bears (likely males) on the higher portions (levees and ridges) of the Atchafalaya Basin spanning the area between the UARB and LARB subpopulations, movement of individuals among other subpopulations cannot be ruled out. Increased sedimentation is occurring in the interconnecting habitat in the Atchafalaya Basin (Hupp et al. 2008, p. 139) as predicted by LeBlanc et al. (1981, p. 65). The increase in sedimentation is resulting in higher elevations within the Basin that will produce suitable bear habitat (
Additionally, range expansion by bears from the northern subpopulations would take advantage of the improved Atchafalaya Basin habitats. At the current time, the LARB subpopulation is stable to increasing, although we did not have data to determine its long-term viability. The LARB has been characterized by some, based on its genetic uniqueness, as more representative of the Louisiana black bear and thus should be given special consideration for its integrity (Triant et al. 2003, p. 647). However, Csiki et al. (2003, p. 699) suggested that the distinctness of the Louisiana black bear was the result of a genetic bottleneck rather than a true genetic difference. Since 2003, our understanding of genetic markers has improved. Studies by Troxler (2013) and Laufenberg and Clark (2014) reached similar conclusions (
Habitat supporting the LARB subpopulation (population range from 136 to 194 adult bears (Laufenberg and Clark 2014, p. 45)) of the Louisiana black bear is more vulnerable to one of the particular effects of global climate change, the long term threat of sea level rise, than other subpopulations due to its occurrence within low-elevation coastal habitats. However, as discussed above, in the event of coastal bear habitat loss due to climate change effects, bears have demonstrated the ability to adapt and move to more suitable areas and would likely move into suitable areas. Additionally, any long-term threat of sea level rise would likely be ameliorated to some extent by
We also evaluated whether the other occurrences that we cannot currently consider self-sustaining in Mississippi and northern Louisiana could be considered a significant portion of the species' range. However, those subpopulations have formed as the result of emigration from nearby subpopulations. Therefore, based on examination of information on the biology and life history of the Louisiana black bear, we determined that there are no separate areas of the range that are significantly different from others or that are likely to be of greater biological or conservation importance than any other areas.
In conclusion, we have determined that none of the existing or potential threats, either alone or in combination with others, are likely to cause the Louisiana black bear to be in danger of extinction throughout all or a significant portion of its range, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. On the basis of this evaluation, we conclude the Louisiana black bear no longer requires the protection of the Act, and propose to remove the Louisiana black bear from the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11(h)).
This rule, if finalized, would revise 50 CFR 17.11(h) to remove Louisiana black bear from the List of Endangered and Threatened Wildlife. In addition, the rule would revise § 17.11(h) to remove similarity of appearance protections for the American black bear, which are in effect within the historical range of the Louisiana black bear. This designation is assigned for law enforcement purposes to an unlisted species that so closely resembles the listed species that its taking represented an additional threat to the Louisiana black bear at the time of listing. With the delisting of the Louisiana black bear, such a designation would no longer be necessary.
If this proposed rule is finalized, the prohibitions and conservation measures provided by the Act would no longer apply to the Louisiana black bear. Federal agencies would no longer be required to consult with us under section 7 of the Act to ensure that any action authorized, funded, or carried out by them is not likely to jeopardize the bear's continued existence. The prohibitions under section 9(a)(1) of the Act would no longer make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce, or take, possess, sell, deliver, carry, transport, or ship Louisiana black bears. Finally, this rule would also remove the Federal regulations related to the Louisiana black bear listing: The special rule provisions at 50 CFR 17.40(i) and the critical habitat designation at 50 CFR 17.95(a).
Section 4(g)(1) of the Act requires us to implement a system in cooperation with the States to monitor effectively, for not less than 5 years the status of all species that have recovered and been removed from the Federal List of Endangered and Threatened Wildlife and Plants (List). Section 4(g)(2) of the Act directs us to make prompt use of its emergency listing authorities under section (4)(b)(7) to prevent significant risk to the well-being of any recovered species. PDM refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to ensure that the species' status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as threatened or endangered is not again needed. If at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing. At the conclusion of the monitoring period, we will review all available information to determine if relisting, the continuation of monitoring, or the termination of monitoring is appropriate.
Section 4(g) of the Act explicitly requires that we cooperate with the States in development and implementation of PDM programs. However, we remain ultimately responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation after delisting. In August 2013, LDWF and the Service agreed to be cooperators in the PDM of the Louisiana black bear.
We have prepared a Draft PDM Plan for the Louisiana black bear (
(1) Summarizes the species' status at the time of delisting;
(2) Defines thresholds or triggers for potential monitoring outcomes and conclusions;
(3) Lays out frequency and duration of monitoring;
(4) Articulates monitoring methods including sampling considerations;
(5) Outlines data compilation and reporting procedures and responsibilities; and
(6) Proposes a PDM implementation schedule including timing and responsible parties.
Concurrent with this proposed delisting rule, we announce the draft plan's availability for public review. The draft PDM plan can be viewed in its entirety at:
In accordance with our policy published in the
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
This proposed rule does not contain collections of information that require approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined that we do not need to prepare an Environmental Assessment or Environmental Impact Statement, as defined in the National Environmental Policy Act of 1969 (42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that no tribal lands or interests are affected by this proposal.
A complete list of references cited is available on
The primary author of this document is Deborah Fuller, Louisiana Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
Bureau of Industry and Security, Commerce.
Final rule.
The Bureau of Industry and Security (BIS) maintains, as part of its Export Administration Regulations (EAR), the Commerce Control List (CCL), which identifies certain of the items subject to Department of Commerce jurisdiction. This final rule revises the CCL to implement changes made to the Wassenaar Arrangement's List of Dual-Use Goods and Technologies (Wassenaar List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement, or WA) at the December 2014 WA Plenary Meeting (the Plenary). The twentieth Plenary meeting of the Wassenaar Arrangement was held in Vienna on 2 to 3 December 2014. The Wassenaar Arrangement advocates implementation of effective export controls on strategic items with the objective of improving regional and international security and stability.
Wassenaar Participating States agreed to new export controls in a number of areas, including spacecraft equipment (Category 9) and technology for fly-by-wire/flight-by-light systems (Category 7), while texts for the control of machine tools (Category 2) and optical equipment for military utility and fiber laser components (Category 6) were substantially revised. In addition, significant reviews of several categories resulted in the deletion of obsolete controls relating to vessels (Category 8) and in refined controls on Unmanned Aerial Vehicles—UAVs (Category 9), specifically taking note of the substantial progress of technology in that area. Wassenaar Participating States modified controls in a number of other areas, such as equipment for production of electronic devices (Category 3), certain telecommunications equipment where encryption and other “information security” functionality is limited to operations, administration, or maintenance (OAM) tasks (Category 5P2), and general purpose computers or servers where standard “information security” functionality is provided by embedded mass market microprocessors (CPUs) or operating systems (also Category 5P2).
This rule amends the CCL by implementing the changes agreed to by the WA at the Plenary by revising 42 Export Control Classification Numbers (ECCNs), adding one ECCN and removing one ECCN, as well as amending the General Technology Note, WA reporting requirements, adding seven (7) definitions and revising six (6) definitions in the EAR.
This rule also revises 3 ECCNs to add License Exception CIV eligibility for Anisotropic plasma dry etching equipment and related software and technology for the development and production of this equipment, as a result of BIS' foreign availability assessment.
Country Group A column 1, the Coordinating Committee (CoCom) member countries, is replaced with the successor national security export regime the Wassenaar Arrangement Participating States. In addition, the second national security column and the second regional stability column of the Commerce Country Chart are amended to harmonize with each other, as well as make changes based on the risk of diversion to unauthorized end user, end uses or destinations.
This rule is effective: May 21, 2015.
For general questions contact Sharron Cook, Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce at 202-482-2440 or by email:
For technical questions contact:
The Wassenaar Arrangement (WA) on Export Controls for Conventional Arms and Dual-Use Goods and Technologies is a group of 41 like-minded states committed to promoting responsibility and transparency in the global arms trade, and preventing destabilizing accumulations of arms. As a Participating State, the United States has committed to controlling for export all items on the WA control lists. The lists were first established in 1996 and have been revised annually thereafter. Proposals for changes to the WA control lists that achieve consensus are approved by Participating States at annual December Plenary meetings. Participating States are charged with implementing the agreed list changes as soon as possible after approval. Implementation of WA list changes ensures U.S. companies have a level playing field with their competitors in other WA Participating States.
Unless otherwise indicated, the changes to the EAR described below are made in order to implement changes to the WA control lists approved at the December 2014 Plenary meeting.
Revises (42): 0A606, 1A613, 1C002, 1C007, 1C008, 1C010, 1E002, 2B001, 3A001, 3A002, 3A991, 3B001, 4D001, 4E001, 5D001, 5E001, 5A002, 6A001, 6A003, 6A004, 6A005, 6C005, 6D003, 7A003, 7D004, 7E004, 7E001, 8A001, 8A002, 8A620, 8E002, 9A001, 9A003, 9D003, 9A004, 9A010, 9A012, 9B001, 9B010, 9D003, 9D004, and 9E003.
Adds (1): 9D005.
Removes (1): 4D002.
Revises because of the Foreign Availability Assessment (3): 3B001, 3D001, and 3E001.
ECCN 0A606 is amended by revising paragraph .b in Note 2 to paragraph .a in order to remove a comma after the word “parts” to correct the punctuation.
ECCN 1A613 is amended by adding “metallic or non-metallic” to the beginning of Items paragraph .a to clarify that 1A613 includes plates made from metal or non-metal materials, such as ceramics, glass, composites, or any
ECCN 1C002 is amended by revising Item paragraphs c.2.f and c.2.g, and adding Item paragraph c.2.h. Paragraph c.2.f is revised by removing the word “or” from the end of this paragraph. Paragraph c.2.g is revised by replacing the “and” with an “or” at the end of this paragraph. This rule adds new paragraph c.2.h to control metal alloy powder or particulate material specified in 1C002.c.1 made in a controlled environment by “plasma atomization,” because this process is capable of producing fine spherical powders having the composition specified in 1C002.c.1 and can produce powder sizes finer than those processes already listed 1C002.c.2. Also, the definition for “plasma atomization” is added to § 772.1 of the EAR.
ECCN 1C007 is amended by revising the Heading and Item paragraph a. The Heading is revised by replacing “ceramic base materials” with “ceramic powders,” because this term is not commonly used in literature for ceramics, not commonly recognised by ceramics manufacturers, and is prone to misinterpretation. For the same reason, Items paragraph .a is amended by replacing “base materials” with “ceramic powders.”
ECCN 1C008 is amended by removing and reserving Items paragraph .b (Thermoplastic liquid crystal copolymers), because thermoplastics have not been able to compete in structural applications with thermosetting material controlled in 1C008.a.2.
ECCN 1C010 is amended by moving the Technical Notes from below paragraph .c and adding them to the beginning of the Items paragraph of the List of Items Controlled section, because it applies to the whole ECCN. This rule also revises Items paragraph d.1.b by replacing the reference to “1C008.b to 1C008.f” with “1C008.d to 1C008.f” in order to harmonize with the revision this rule made to 1C008.
ECCN 1E002 is amended by revising the List Based License Exceptions and Items paragraphs .c, .c.1., .c.1.c.1., .c.1.c.2. and .g; removing Items paragraphs .c.1.c.3 through .c.1.c.3.c.; removing and reserving Items paragraph .d; and removing the Technology Note to paragraph .g.
1E002.f is removed from License Exception TSR eligibility because the General Technology Note, Supplement No. 2 to part 774, which indicates that License Exception TSU is not available for repair “technology” controlled by 1E002.e or .f. A License Requirement Note is added to explain this in the ECCN.
Items paragraphs .c, .c.1, .c.1.c.1, and .c.1.c.2 are amended by replacing the term “base materials” with “ceramic powders,” because this term is not commonly used in literature for ceramics, not commonly recognised by ceramics manufacturers and is prone to misinterpretation.
This rule removes Items paragraphs .c.1.c.3 through .c.1.c.3.c (technology for the design or production of ceramic powders or non-composite ceramic materials having platelets, whiskers, and continuous or chopped fibers), because the advancement of technology in this area has made the use of these materials outdated and it is very unlikely that these materials would ever be used in the same ceramic composition formulation.
Items paragraph .d (aromatic polyamide “production” “technology”) is removed and reserved because this technology is adequately covered by ECCN 1E001.
Items paragraph .g is amended by adding double quotes around the term “libraries”, removing the parenthetical phrase “(parametric technical databases)” and removing the Technology Note to paragraph .g that provided a definition for the term “library,” because the term “libraries” is changed from a locally defined term to a globally defined term. See § 774.1(d) regarding the quote system used in the CCL. This rule adds the term “libraries” to § 772.1 of the EAR to harmonize with the WA agreement to make it a global definition because it is used in both the WA Military List (ML17) and in 1E002.
Changes are made in the Technical Notes under 2B, to provide guidance for the measurement of “unidirectional positioning repeatability” (UPR).
ECCN 2B001 is amended by revising Items paragraphs a.1, b.1.a, b.2.a through b.3, c.1.a, c.2 through c.2.c, Notes 2B001.c paragraph b., and e.2.b. Items paragraphs a.1, b.1.a, b.2.a through b.3, c.1.a, c.2 through c.2.c, Notes 2B001.c paragraph b amendments change the control parameter for turning, milling, jig boring and grinding machine tools from positioning accuracy (A) to “unidirectional positioning repeatability” (UPR). This includes adding a definition for “unidirectional positioning repeatability” in § 772.1 of the EAR. Machine tools for milling and turning having five or more axes are grouped in 3 divisions depending on the travel length of axis (length < 1m, 1m ≤ length < 4m and length ≥ 4m) to which specific control thresholds are associated (1.1 μm, 1.4 μm and 6 μm). Other machines (Turning, milling, grinding and jig boring) would be controlled based upon a specific UPR value and, as appropriate, their number of linear/rotary axes. The main reason for the change is that UPR represents the best possible accuracy for machine tools. Additionally, there is no systematic error in the measurement of UPR therefore there is no need for compensation. In particular, this may solve a loophole that currently exists with the measurement of positioning accuracy which is dependent on compensation. In the course of discussions at WA, delegations also addressed the question of used machines for which UPR values may not be specified or available. Generally there is a factor of 1 to 3 (According to ISO) between A and UPR. This ratio could be another tool that can assist in classifying used machine tools.
Items paragraph e.2.b is amended to add double quotes around the term “accuracy” to indicate that the term is defined in § 772.1 of the EAR. See § 774.1(d) regarding the quote system used in the CCL.
ECCN 3A001 is amended by revising Items paragraphs a.5.b.1 and a.5.b.2, a.7, a.7.a and a.7.b, the Technical Notes following a.7.b, b.7, b.10, and b.11.f and
Items paragraph b.7, converters and harmonic mixers, is amended to add detailed parameters, (
Items paragraph b.10, oscillators or oscillator assemblies, is amended to clarify that 3A001.b.10 applies not only between 10 Hz and 10 kHz, but also at those frequencies, which ensures that oscillators are properly controlled. The revisions to 3A001.b.10 seek to adjust the formula defining the control thresholds so that they closely approximate the actual shape of the phase noise curve in real oscillators/instruments. This will increase the effectiveness of the controls.
3A001.b.11.f and b.11.g are revised by raising the upper frequency limit of 75 GHz to 90 GHz to align the specified maximum frequency to a standard waveguide frequency breakpoint that is relevant to current commercial applications.
ECCN 3A002 is amended by revising Items paragraphs a.5.a through a.5.c; adding paragraph 3. to the Technical Notes following Items paragraph a.5.c; revising Items paragraphs .c through c.3, c.4.a, .d through d.1.a, d.2, d.3.b through d.4.b, d.5, Note 1 after d.5, Technical Note 1 after d.5, and e.1 through e.2.
3A002.a.5.c and Technical Note paragraph 3 are added to the recording equipment and oscilloscopes control to clarify the scope of controls and, in particular, to address an issue of overlap between waveform digitizers and transient recorders specified by 3A002.a.5 and digital instrumentation data recorder systems specified by 3A002.a.6.
3A002.c (Signal analyzers) is amended by removing the term `radio frequency,' which is no longer consistent with the scope of controls specified by this entry. The term `radio frequency' indicates frequencies up to 6 GHz, but the subparagraphs 3A002.c.1 through c.3, in which frequencies are specified, all refer to frequencies of 31.8 GHz and higher.
In 3A002.c.1, although the frequency breakpoint for this band has been 37.5 GHz, it is now recognized that the breakpoint is 37 GHz, as per ETSI EN 300 197.
In 3A002.c.2, c.3, d.2 (Signal analyzers and generators), e.1 and e.2 (network analyzers) the high-frequency maximum limit is raised to 90 GHz. This figure corresponds to the maximum frequency of E-band waveguide (60-90 GHz), which is relevant to current commercial applications.
3A002.c.4.a is revised by increasing the control threshold (real-time bandwidth) from 85 to 170 MHz. Civilian data communication networks have increased in bandwidth to facilitate and promote these legitimate commercial uses. The updated threshold for real-time bandwidth addresses the 802.11ac WiFi standard.
3A002.d (signal generators) is revised to align the controls with current commercial technology requirements, specifically driven by commercial RF (Radio Frequency)/MW (Microwave) communication systems, while maintaining control on equipment of national security interests. The bandwidth (frequency change) is increased uniformly to 2.2 GHz and the frequency switching time is decreased uniformly to 100 μs (except in the range 31.8-37 GHz, for which the bandwidth and frequency switching time thresholds remain, unchanged). These changes are motivated by developments in modern commercial communication applications that are utilizing the modulation formats of the IEEE 802.11ad standard.
ECCN 3A991 is amended by revising the introductory text to Items paragraph .d (field programmable logic devices) by raising the maximum limit of input/outputs from 500 to 700 in order to accommodate technological advances in this area and to correspond to the change made to 3A001.a.7,
ECCN 3B001 is amended by revising the License Exception CIV eligibility paragraph and revising Items paragraphs f.1.a through f.2. The License Exception CIV eligibility paragraph is revised by adding 3B001.c (anisotropic plasma dry etching equipment) in light of a foreign availability assessment completed by BIS that concluded that equivalent items are available in China and therefore, no longer warrant CIV eligibility. Two lithography equipment parameters in 3B001.f are revised to recognize the movement of the state of the art of lithography equipment and feature size of advanced integrated circuits of significance to the military. A modernization of “Minimum Resolvable Feature size” (MRF) from 95 nm to 45 nm in Items paragraph f.1.b also required a change to the source wavelength in Items paragraph f.1.a used in direct step wafer lithography equipment. Therefore, Items paragraph f.1.a is revised by lowering the light source wavelength from “shorter than 245 nm” to “shorter than 193 nm.” In addition, the feature control parameter for imprint lithography in Items paragraph f.2 is revised from 95 nm to 45 nm to be consistent with the changes to direct step wafer equipment in Items paragraph f.1.
The License Exception CIV eligibility paragraphs are revised by adding software and technology for 3B001.c (anisotropic plasma dry etching equipment), because of the foreign availability assessment completed by BIS that concluded that equivalent items are available in China and therefore, no longer warrant control.
ECCN 4D001 is amended by revising the License Exception TSR eligibility paragraph in the List Based License Exceptions section; revising the License Exception STA ineligibility paragraph in the Special Conditions for STA section; and revising Items paragraph b.1 in the List of Items Controlled section. Because the Adjusted Peak Performance in Items paragraph .b is raised from 0.60 Weighted TeraFLOPS (WT) to 1.0 WT, the License Exception TSR eligibility paragraph and the License Exception STA ineligibility paragraphs are adjusted from 1.0 WT to 2.0 WT to account for technological advancements in software for the development and production of computers.
4D002 is removed from the Commerce Control List, because is it no longer in use and not of national security concern.
ECCN 4E001 is amended by revising the License Exception TSR eligibility paragraph in the List Based License Exceptions section; revising the License Exception STA ineligibility paragraph in the Special Conditions for STA section; and revising Items paragraph b.1 in the List of Items Controlled section. Because the Adjusted Peak Performance in Items paragraph .b is raised from 0.60 Weighted TeraFLOPS (WT) to 1.0 WT, the License Exception TSR eligibility paragraph and the License Exception STA ineligibility paragraphs are adjusted from 1.0 WT to 2.0 WT to account for technological advancements in software for the development and production of computers.
Note 6 of the Technical Note on “APP” is amended by removing the requirement to calculate the APP value for multiple memory/processor combinations operating simultaneously utilizing “specially designed” hardware, such as external interconnection equipment controlled under 4A003.g. Two Technical Notes are added after Note 6 for clarification on APP requirements for multi-processor systems. The revision to Note 6 simplifies the Note, eliminates an instance of “specially designed,” and tightens the focus of the control on the more capable shared-memory computer systems. The Technical Note is added to define when processors actually share memory.
ECCN 5D001 is amended by removing and reserving Items paragraph .b, “Software” “specially designed” or modified to support “technology” controlled by 5E001, because this control is outdated and no longer in use.
ECCN 5E001 is amended by revising Items paragraph c.1, infrastructure transmission and switching “technology”, to raise the “total digital transfer rate” from 120 Gbit/s to 560 Gbit/s in order to accommodate advances in technology and in public standards.
Category 5 Part 2 is amended to revise Note 1 to Category 5 Part 2, 5A002.a and 5A002.b to clarify that these entries apply to any system, equipment or component that meet the control parameters specified in a particular 5A002 or 5B002 entry. Prior to this revision there was a risk that exporters would interpret the current language to exclude some items that have “information security” functionality but are not specifically listed. The definition of “cryptanalytic items” in § 772.1 of the EAR is similarly revised, for the same reasons.
ECCN 5A002 is amended by revising the Related Controls paragraph in the List of Items Controlled section to add recently added paragraphs,
This rule also revises paragraph (j) in the Note at the beginning of the Items section, 5A002.b, 5D002.d and 5E002.b and the definition of “cryptographic activation” in order to address a loophole regarding the `cryptographic activation' controls. The concept of “cryptographic activation” was introduced in 2010. The purpose of (j) is to release from control cryptographic equipment where the cryptographic capability cannot be enabled without some kind of additional mechanism such as a license key that is securely kept and bound to the equipment being activated. However, it was found that the original wording of the definition did not explicitly exclude certain circumstances by which export controls on cryptography could be circumvented by a manufacturer.
A new paragraph (l) is added to the Note at the beginning of Items paragraph to exclude from 5A002 routers, switches or relays, where the “information security” functionality is limited to the tasks of “Operations, Administration or Maintenance—OAM,” implementing only published or commercial cryptographic standards. In addition, a definition for “Operations, Administration or Maintenance” (“OAM”) is added to § 772.1 of the EAR, as well as a new Note under 5D002.c.
New paragraph (m) is added to the Note at the beginning of the Items paragraph to exclude from 5A002 general purpose computing equipment or servers having standard `information security' functionality from their embedded mass market microprocessors (CPUs) and operating systems, in addition to OAM functionality.
The Note to 5A002.a.2 (Equipment performing cryptanalytic functions) is amended by replacing the word `cryptanalysis' with `cryptanalytic functions' and adding a new Technical Note to clarify the meaning of `cryptanalytic functions'. This eliminates ambiguity by explicitly defining the term `cryptanalytic functions' for purposes of the control, while keeping the term `cryptanalysis' as a local definition to the overall definition of “information security.”
The definition of “cryptanalytic items” in § 772.1 of the EAR is similarly revised to make clear references to `cryptanalytic functions' and `cryptanalysis.'
Items paragraph a.9 and the Technical Note following Items paragraph a.9 are corrected by replacing the single quotes with double quotes around the term “quantum cryptography” and removing Technical Note 1, which is the definition for “quantum cryptography,” because that term is now defined in § 772.1 of the EAR. See § 774.1(d) regarding the quote system used in the CCL.
ECCN 6A001 is amended by revising Items paragraph a.1.a.2.a.2; the Technical Note after Items paragraph a.1.a.2.a.2; and Items paragraph a.1.a.3. Items paragraph a.1.a.2.a.2 (Underwater survey equipment designed for seabed topographic mapping) is amended to add the unit “m/s” to the sounding rate parameter. The Technical Note that defines `sounding rate' is amended by adding the guidance, “for systems that produce soundings in two directions (3D sonars), the maximum of the
Items paragraph a.1.a.3 (Side Scan Sonar (SSS) or Synthetic Aperture Sonar (SAS), designed for seabed imaging) is amended by adding a control for “specially designed transmitting and receiving acoustic arrays therefor,” because the quality and size of the transmitting and receiving hydrophone arrays is a key component to the performance of the overall system.
This rule also revises the introductory text of Items paragraph a.1.c to add two commas and 1 set of parentheticals for clarity; adds the phrase “not specified by 6A001” to Note 1 that appears after Items paragraph a.1.c; removes Items paragraph a.1.c.1 and adds in its place Items paragraphs a.1.c.1, a.1.c.1.a and a.1.c.1.b; removes the Technical Note after Items paragraph a.1.c.1 and adds a Technical Note after Items paragraph a.1.c.1.b; and removes and reserves Items paragraph a.1.c.2. The revised text of 6A001.a.1.c (Acoustic Projectors) is intended to address an issue with the former text that did not specify the conditions under which the specified criteria were to be determined.
ECCN 6A003 is amended by removing the special license requirement for Hong Kong in the License Requirement Table, because 6A003.b.4.b already requires a license under NS:2, RS:1 and RS:2 for these items.
ECCN 6A003 is amended by revising the Reporting Requirement Note, under the License Requirement Table, by replacing the list of countries with a reference to the newly revised Country Group A:1 of Supplement No. 1 to part 740. This is to align with the revision of the Regional Stability requirements for these items in § 742.6 and the overall national security country group amendments.
ECCN 6A003 is amended by revising Items paragraphs a.3 through a.3.b, paragraph b.4.c.1 in Note 3 to 6A003.b.4.b that appears after Items paragraph b.4.c; and revising paragraph .b in Note 4 to 6A003.b.4.c that appears after Items paragraph b.4.c. Items paragraph a.3 through a.3.b (mechanical or electronic streak cameras) are amended by restructuring the control text in a cascading format to apply the writing speed parameter to mechanical camera and a temporal resolution to electronic tube cameras. As a result, plug-ins for streak cameras are decontrolled, which are relatively simple devices and do not represent a concern.
Note 3 and 4 to 6A003.b.4.b and 6A003.b.4.c respectively are amended to adjust the parameters in order to decontrol imaging cameras as a component of a night vision system for civil passenger land vehicles.
ECCN 6A004 is amended by revising the GBS and CIV paragraphs under the List Based License Exceptions section, adding a Technical Note after introductory Items paragraph 6A004.a; revising Items paragraph a.1, including adding subparagraphs a.1.a through a.1.b.2; and removing and reserving Items paragraph d.4. 6A004.a.1 is revised to address an issue with the text that essentially captured all deformable mirrors (DMs) on the market, irrespective of their military significance. The revised text includes new parameters that more closely identifies DMs with clear military utility and significance.
In addition, this rule revises Items paragraph a.4, including adding subparagraphs a.4.a through a.4.b.2.b and N.B after a.4.b.2.b. The revised text of 6A004.a.4 (Mirrors for beam steering mirror stages) and 6A004.d.2 (Beam steering mirrors stages and resonator alignment equipment) are updated to align the parameters with technological advancements in this area.
This rule also revises Items paragraph d.2, including adding subparagraphs d.2.a through d.2.b in order to separate and modernize the beam steering mirror controls in 6A004.a.4 and mirror control equipment listed 6A004.d.2.
Optical control equipment for segmented mirror alignment in 6A004.d.4 is removed because space qualified segmented mirror systems are already captured by 6A004.c.3, which makes the 6A004.d.4 control entirely redundant. Any non-space qualified optical control equipment for segmented mirror alignment is widely available and does not warrant control. License Exception GBS and CIV paragraphs are amended to remove reference to 6A004.d.4.
ECCN 6A005 is amended by removing the Note to 6A005.c that appears after the Items paragraph .c; revising Items paragraph e.2; adding a Note to Items paragraph e.2; and adding Items paragraph e.3.
The Note to 6A005.c is removed because some of the referenced laser technologies no longer exist. However, this does not mean that all the lasers listed in this Note are decontrolled, and exporters should look to specific ECCNs related to specific lasers to confirm control status.
Items paragraph e.2 (optical mirrors or transmissive or partially transmissive optical or electro-optical-”components,”) is amended to move “fused tapered fiber combiners and Multi-Layer Dielectric gratings (MLDs)” to Items paragraph e.3.c. Items paragraph e.3 (fiber laser components) is added to specify parameters for fiber laser components of concern.
The Heading of 6C005 is amended to be more general, because specific items paragraphs are added to this entry. What was previously specified by the Heading is now specified in Items paragraph 6C005.a. Rare-earth-metal doped double-clad fibers are added to 6C005.b to specify components of concern.
6D003.d is added to control “software” specially designed to maintain the alignment and phasing of segmented mirror systems consisting of mirror segments having a diameter or major axis length equal to or larger than 1 m. While this rule removes optical control equipment specially designed to maintain the alignment and phasing of segmented mirror systems from 6A004.d.4, because it is widely available, the software for such purposes is not widely available and still warrants controls.
This rule replaces the reference to `civil aviation authorities in a Wassenaar Arrangement Participating State' with `civil aviation authorities of one or more Wassenaar Arrangement Participating States' in various entries of the control lists (7A003 Note 2, 9A001.a, 9E003.h). This change acknowledges the fact that, for example in Europe the authority for certifying civil aircraft and components for airworthiness is the European Aviation Safety Agency (EASA). It would ensure that the Notes continue to apply to aircraft and components certified in European countries that may no longer have a Civil Aviation Authority.
ECCN 7D004 and 7E004 are amended by revising the Related Controls paragraph in the List of Items Controlled section to remove reference to ECCNs 0D521 and 0E521, because these items
These changes are intended to address an issue with the current text which only controls `active flight control systems' for protection-predictive diagnosis (7E004.b.3 and 7E004.b.4) and the related software in 7D004. The revised text will cover technology and software “know-how” related to high performance fly-by-wire/fly-by-light systems that could enhance the performance capabilities of systems of concern. Source code for fly-by-wire/fly-by-light systems is addressed in a new entry 7D004.c.
There are two main revisions to 7E004: Addition of a 7E004.b.7, which is intended to control the “development” “technology” for specific fly-by-wire functions/capabilities, which enable or enhance critical military capabilities; and addition of 7E004.b.8, which controls the technology to design a fault tolerant fly-by-wire system that has a Probability of Loss of Control (PLOC) rate of less (better) than 1×10
7E001 Heading is corrected to reinsert the exceptions to 7A994 and 7B994 that were inadvertently removed by the last WA implementation rule.
ECCN 8A001 is amended by removing Items paragraphs .f (surface-effect vehicles (fully skirted variety)), .g (surface-effect vehicles (rigid sidewalls)), .h (hydrofoil vessels with active systems for automatically controlling foil systems), and .i (small waterplane area vessels), because these control entries are obsolete. Commodities no longer controlled in 8A001 may now be controlled in ECCN 8A992 (Vessels, marine systems or equipment, not controlled by 8A001 or 8A002, and “specially designed” “parts” and “components” therefor, and marine boilers and “parts,” “components,” “accessories,” and “attachments”). “Technology” according to the General Technology Note for the “development” or “production” of the equipment removed from 8A001 remains controlled in newly added 8E002.c.
ECCN 8A002 is amended by removing Items paragraphs .k (skirts, seals and fingers), .l (Lift fans), .m (fully submerged subcavitating or supercavitating hydrofoils, “specially designed” for vessels controlled by 8A001.h), .n (active systems “specially designed” or modified to control automatically the sea-induced motion of vehicles or vessels, controlled by 8A001.f, 8A001.g, 8A001.h or 8A001.i), and o.1 (Water-screw propeller or power transmission systems, “specially designed” for surface effect vehicles (fully skirted or rigid sidewall variety), hydrofoils or `small waterplane area vessels' controlled by 8A001.f, 8A001.g, .8A001.h or 8A001.i), because these are support systems for the items being deleted in 8A001. Commodities no longer controlled in 8A002 may now be controlled in ECCN 8A992 (Vessels, marine systems or equipment, not controlled by 8A001 or 8A002, and “specially designed” “parts” and “components” therefor, and marine boilers and “parts,” “components,” “accessories,” and “attachments”).
ECCN 8A620 is amended by revising Items paragraph .f (Closed and semi-closed circuit (rebreathing) apparatus “specially designed” for military use and not enumerated elsewhere in the CCL or in the USML) by removing the control for “specially designed” “components” for use in the conversion of open-circuit apparatus to military use, because none have been identified.
ECCN 8E002 is amended by removing License Exception TSR eligibility, because 8E002.a is specifically ineligible for License Exception TSU pursuant to the Note in the General Technology Note (GTN) of Supplement No. 2 to part 774. This rule also adds a License Exception Note to the List Based License Exceptions section to reference the Note to the GTN, which makes this ECCN ineligible for License Exception TSU, so that people do not overlook the Note to the GTN that has been in existence for more than a decade. In addition, this rule adds Items paragraph .c to maintain controls on “technology” according to the General Technology Note for the “development” or “production” of equipment deleted from 8A001.f through .i. Even though this equipment is obsolete to those that have advanced technology, the technology still warrants controls because of the usefulness of the equipment.
ECCN 9A001 is amended by revising Notes 1 and 2 in Items paragraph .a for reasons explained under 7A003 above.
ECCNs 9A003 and 9D003 are amended by revising the Headings by replacing the “and” with “or” and to also control the “specially designed” assemblies or components of the Auxiliary Power Unit (APU) (which incorporate “technologies” controlled by 9E003.a and 9E003.h) and FADEC software of the APU until it becomes decontrolled by Note 2 under 9A001 (APU's). The changes also make clear that when an APU becomes decontrolled by Note 2 under 9A001, then the specially designed assemblies or components, as well as the FADEC software, can be exported without any further licensing requirements. Item paragraph .b is revised to align the country scope with the Wassenaar Participating States of Supplement No. 1 to part 743 of the EAR.
ECCN 9A004 is amended by revising the Heading; revising the License Requirements section; redesignating Items paragraph .a as .w; adding paragraphs .a through .f.2; and revising the range of paragraphs that are Reserved from “b. through w.” to “g. through v.”
Items paragraph .a (the International Space Station) is moved to Items paragraph .w, in order to add newly designated Items paragraphs .a (space launch vehicles), .b (“spacecraft”), .c (“spacecraft buses”), .d (“spacecraft payloads”), .e (on-board systems or equipment, specially designed for “spacecraft”), and .f (terrestrial equipment, specially designed for “spacecraft”). Even though these Items paragraphs .a-.f are controlled under a different ECCN 9A515, as indicated by the new License Requirement Note, they are listed here so they harmonize with the placement of them in the Wassenaar Arrangement Dual-use List in order to create a pointer to ECCN 9A515 for those that look for them here first. BIS
Prior to publication of this rule, only some specific components were controlled on their own merits in the relevant categories (
Finally, the terms “spacecraft bus” and “spacecraft payload” are added to § 772.1 to avoid any ambiguity in the terms used, reflecting the technical state of the art and the commercial practices, and to facilitate common interpretation of both concepts.
ECCN 9A010 is amended by adding a List of Items Controlled section and Items paragraph heading; and adding Items paragraphs .a through .d in order to harmonize with the Wassenaar Dual-Use List placement and to direct people who may look for them here first to the ITAR. These items are “subject to the ITAR” (See 22 CFR parts 120 through 130).
ECCN 9A012 is amended by revising the Heading, the MT paragraph in the License Requirements section, and Items paragraphs .a through b.2, and b.4. The word `system' is deleted from the Heading because the revised text no longer includes systems. The capitalization of words that are abbreviated for the first time is corrected in the MT license requirement paragraph. The revised text of 9A012.a limits the control of UAVs to those designed to have controlled flight out of the direct `natural vision' of the `operator' and having either: 1) A maximum `endurance' greater than or equal to 30 minutes but less than 1 hour and designed to take-off and have stable controlled flight in wind gusts of 25 knots or greater, or 2) A maximum `endurance' of 1 hour or greater. Three new Technical Notes explain what is meant by `operator,' `endurance,' `natural vision.' Items paragraphs b.1 and b.2 are deleted because remote control components are very hard to distinguish from model aircraft remote control units for smaller platforms, or they are not considered as critical enabling equipment for larger platforms. Items paragraph b.4 is amended to make the SI system (International System of Quantities ISO) the main reference for parameters as agreed to by WA.
ECCN 9B001 is amended by revising the Heading; the Special Conditions for STA section; Items paragraph .b; and adding Items paragraph .c. The Heading is amended by replacing the “and” with “or,” adding the word “engine” before “blades,” replacing “tip shroud” with “tip shrouds,” and removing the word “castings” to clarify the scope of the entry. Paragraph .b includes a control on cores or shells made from refractory metals. The Special Conditions for STA that apply to Country Group A:6 are revised to expand the scope to all of 9B001 to reflect the limited availability of 9B001.a equipment outside of WA Participating countries and the emerging technology of 9B001.c. This change is also reflected in Supplement No. 6 to part 774 “Sensitive List.” Items paragraph .b is revised to update the current entry and provide a more comprehensive description of the critical production tools for the manufacture of gas turbine blades, vanes or tip shrouds. Paragraph 9B001.c is added to control additive manufacturing equipment for turbine components.
ECCN 9B010 is amended by revising the Heading to harmonize with the changes made to ECCN 9A012.
The Heading of 9D003 is amended by removing the word “propulsion” to clarify the scope of the entry and by removing 9A004 from the range of systems related to “FADEC Systems.” ECCN 9A004 now controls spacecraft items, which have no gas turbine engines. FADEC Systems are defined for gas turbine engines.
ECCN 9D004 is amended by revising Items paragraphs .c and .e to specify software that is specially designed to control the crystal growth process in casting or additive manufacturing equipment specified in 9B001.a or 9B001.c, respectively.
A new entry 9D005 is added to the CCL to control related software to the new spacecraft controls added to 9A004. However, these Items are already controlled under ECCN 9D515 on the CCL, as indicated by the text in the parentheticals. This entry is added to the CCL to harmonize with the placement of them in the Wassenaar Arrangement Dual-use List and so that people who look for them here first will be directed to ECCN 9D515 where they are controlled in the CCL. BIS will keep using 9D515 for this software because it works best with the unique export controls of the U.S., in that the “15” in the number corresponds to the category on the USML that specifies related military items.
ECCN 9E003 is amended by revising the SI License Requirement paragraph in the License Requirements section, the items paragraphs a.3 through a.4, redesignating paragraph .j as .k, and adding new Items paragraph .j. The SI license requirement paragraph is amended by replacing the reference to paragraph .j with .k, because .j was redesignated as .k. Item paragraph a.3 is amended to address an overlap between entries 1E001, 9E003.a.3.a and 9E003.a.3.c. Item paragraph a.4 is updated to align with 9E003.a.2 and 9E003.a.5. The Note to 9E003.h that
Supplement No. 5 to part 774 is amended by removing and reserving 0D521 No. 2 “Source code” for the “development” of fly-by-wire control systems”; and removing 0E521 No. 6 “Technology” for fly-by-wire control systems,” because this software and technology are now controlled in 7D004 and 7E004.
Supplement No. 6 to part 774 “Sensitive List” is amended by revising paragraph (2), removing and reserving paragraph (5)(iv), and revising “9B001.b” to read “9B001” in paragraph (9)(ii). Paragraph (2) “2D001, 2E001, and 2E002” are revised to harmonize with changes made to Category 2 of the CCL,
In order to align Country Group A:1 (formerly Coordinating Committee (CoCom) member countries) with its successor the Wassenaar Arrangement, BIS is adding Argentina, Austria, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Hungary, Iceland, Ireland, South Korea, Latvia, Lithuania, Mexico, New Zealand, Poland, Romania, Slovakia, Slovenia, South Africa, Sweden, and Switzerland to Country Group A:1 in Supplement No. 1 to part 740. The new name of column A:1 is Wassenaar Participating States. Footnote 1, which was used to identify the cooperating countries,
License Exception GOV in § 740.11 is amended by revising the country scope of the term “cooperating governments” in paragraph (c)(1). Argentina, Austria, Finland, Ireland, Korea (Republic of), New Zealand, Sweden, and Switzerland are removed from the definition of “cooperating governments,” because these countries are now included in the newly revised Country Group A:1, which is already included in the definition of cooperating government. The revision of Country Group A:1 expands the country scope of the term “cooperating government” in § 740.11(c)(1) by adding Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Iceland, Latvia, Lithuania, Mexico, Poland, Romania, Slovakia, Slovenia, and South Africa. These countries are now eligible destinations under § 740.11(c) of License Exception GOV, which authorizes exports, reexports and transfers (in-country) of items listed in paragraph § 740.11(c)(2) consigned to or for official use of any agency of a cooperating government within the national territory of cooperating governments, except items excluded by paragraph § 740.11(c)(3). “Official use” includes exports, reexports and transfers (in-country) to and for the official use of a military end user or military end use or an agency of NATO. This authorization also extends to exports, reexports and transfers (in-country) to and for the official use of a diplomatic or consular mission located in any country in Country Group B, which includes all of the newly added countries. Paragraph (f) of § 744.17 (Restrictions on certain exports, reexports and transfers (in-country) of microprocessors and associated “software” and “technology” for “military end uses” and to “military end users.”), excludes agencies of a cooperating government from the license requirements set forth in § 744.17. While the License Exception GOV authorization for cooperating governments is referenced in § 743.1(b)(1) for WA reporting requirements, the expansion of the country scope for cooperating governments does not change the scope of the reporting requirements, because the reports are only required for exports outside of the WA Participating Countries and all the additional countries are WA Participating Countries.
Expanding the country scope of Country Group A:1 also affects License Exception APR in § 740.16(a) and (b). Prior to publication of this rule, paragraph (a) authorized reexports from countries in Country Group A:1 and cooperating countries. As this rule removes the term “cooperating countries,” the authorization is now for destinations in Country Group A:1 and Hong Kong. The same change is made to paragraph (b), which authorizes reexports to and among destinations in Country Group A:1 and Hong Kong. In addition, the list of countries in paragraph (b)(3) that pertain to cameras is replaced by a reference to Country Group A:1. This revision removes Albania, Cyprus and Malta from License Exception APR eligibility for cameras in paragraph (b)(3), because of the high risk of diversion to unauthorized end users, end uses and destinations.
The Commerce Country Chart is amended by revising the second columns for national security (NS:2), and regional stability (RS:2) in order to harmonize these columns with the newly revised Country Group A:1, making the license requirement consistent with the risk of diversion to unauthorized end users, end uses and destinations. Specifically, this rule would remove the X,
Section 742.4(a) is amended by replacing the reference to Country Group A:5 with a reference to Country Group A:1. The difference between Country Group A:5 and the newly formulated Country Group A:1 is that Mexico and South Africa are included in A:1, but are not in A:5. Mexico and South Africa are Wassenaar Participating States and do not pose a risk of diversion to unauthorized end users or end uses. This rule also removes the special country scope for ECCN 6A003.b.4.b cameras, because this rule is aligning the country scope for these cameras with NS:2, which adds a license requirement for Albania, Cyprus and Malta because of the high risk of diversion of these cameras to unauthorized end users, end uses and destinations.
Section 742.6 is amended by revising paragraphs (a)(2)(iii), (a)(2)(v), (a)(3) and (a)(4)(ii) in order to replace the lists of countries with a reference to the newly revised Country Group A:1 of Supplement No. 1 to part 740. This revision aligns this section with the revised Country Group A:1 and Columns NS:2 and RS:2 in the Commerce Country Chart in Supplement No. 1 to part 738. Paragraph (a)(4)(i) is amended by replacing a reference to “Australia, India, Japan, New Zealand and countries in the North Atlantic Treaty Organization (NATO)” with a reference to “Country Group A:1 (see Supplement No. 1 to part 740 of the EAR) and India.” These countries are excepted from an RS:2 license requirement. Newly revised RS Column 2 does not have an X for India, which makes it different from NS:2 and Country Group A:1. On January 23, 2015, BIS published a rule (80 FR 3463) that removed the X under RS:2 for India in order to further implement the November 8, 2010 bilateral understanding.
Section 743.1 is amended by correcting a reference to License Exception GOV in paragraph (b)(1) and revising paragraphs (g) and (h) to add an Email address for submission of the Wassenaar reports and to update the contact information for Wassenaar reports.
Paragraph (b) in § 743.3 is amended by replacing the list of countries with a reference to the newly revised Country Group A:1 of Supplement No. 1 to part 740. This revision aligns these reporting requirements with the revised Regional Stability requirements for these items in § 742.6 and the overall national security country group amendments.
Section 772.1 is amended by adding in alphabetical order the terms: fly-by-light system, fly-by-wire system, library, operations, administration or maintenance (OAM), plasma atomization, quantum cryptography, spacecraft bus, and spacecraft payload; and revising the terms: civil aircraft, cryptanalytic items, cryptographic activation, end-effectors, information security, local area network, and technology.
See § 774.1(d) regarding the quote system used in the CCL. If a term on the CCL uses double quotes it means there is a defined term in part 772. However, the absence of double quotes does not mean that a term used on the CCL is not defined in part 772.
The reason for revising the definition of the term “civil aircraft” is stated under the explanation for amendments of ECCN 7A003 above.
The definition of “cryptographic activation” was restructured, and in places reworded, to more clearly and precisely reflect the 2010 Wassenaar agreements, without changing the scope. The words “of an item” were added after “Any technique that activates or enables cryptographic capability,” and additional wording makes clear that the ‘mechanism for “cryptographic activation” ' must be “uniquely bound” to “a single instance of the item” or to “one customer, for multiple instances of the item.” These clarifications convey that “cryptographic activation” ' does not include changing or upgrading the controlled cryptographic functionality of a previously exported item, or using a single license key or digitally-signed certificate to activate multiple types of items. For editorial reasons, the explanation that license keys or digitally-signed certificates can be ‘mechanisms for “cryptographic activation” ’ was moved into the Technical Notes.
The definition for the term “end-effectors” is amended by replacing the double quotes with single quotes around the term “active tooling units,” because the definition for “active tooling unit” is in the Note to the definition of “end-effectors” and is not a separate term defined in Section 772.1 of the EAR.
The terms “fly-by-wire” and “fly-by-light” are added to Section 772.1 in order to help the exporting community understand the scope of the new controls in ECCNs 7D004 and 7E004.
The reference for the term “information security” is amended by replacing the reference to (Cat 5) with (Cat 4, 5P1, 5P2, 8, GSN) because this term is used in all these locations. In addition, double quotes are replaced by single quotes around the term `cryptanalysis' because this term is defined in the Technical Note to the definition of “information security.”
The definition of “local area network” is amended by replacing double quotes with single quotes around the term `data devices,' because the term is defined in a Note to the term “local area network.”
The terms “operations, administration or maintenance” (“OAM”) and “quantum cryptography” are added to § 772.1 and the term “cryptanalytic items” is revised for reasons stated under “Category 5 Part 2—“Information Security” above.
The term “plasma atomization” is added to § 772.1 for reasons stated under ECCN 1C002 above.
The terms “spacecraft bus” and “spacecraft payload” are added to § 772.1 for reasons stated under ECCN 9A004.
The reference list for the term “technology” is amended by adding “throughout the EAR,” because this term is used throughout the EAR. In addition, double quotes are replaced by single quotes around the terms `technical data' and `technical assistance,' because these terms are defined in the Technical Notes to this definition and not as separate terms within § 772.1.
The term “unidirectional positioning repeatability” is added to § 772.1 for reasons stated in under ECCN 2B001 above.
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2014, 79 FR 46957 (August 11, 2014), has continued the Export Administration Regulations in effect under the International Emergency
Shipments of items removed from license exception eligibility or eligibility for export, reexport, or transfer (in-country) without a license as a result of this regulatory action that were on dock for loading, on lighter, laden aboard a carrier, or en route aboard a carrier to a port, on May 21, 2015, pursuant to actual orders to a destination, may proceed to that destination under the previous license exception eligibility or without a license so long as they have been exported, reexported, or transferred (in-country) before July 20, 2015. Any such items not actually exported, reexported, or transferred (in-country) before midnight, on July 20, 2015, require a license in accordance with this regulation.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” under Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a 30-day delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Immediate implementation of these amendments fulfills the United States' international obligation to the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. The Wassenaar Arrangement contributes to international security and regional stability by promoting greater responsibility in transfers of conventional arms and dual use goods and technologies, thus preventing destabilizing accumulations of such items. The Wassenaar Arrangement consists of 41 member countries that act on a consensus basis and the changes set forth in this rule implement agreements reached at the December 2014 plenary session of the WA. Because the United States is a significant exporter of the items covered by this rule, implementation of this rule is necessary for the WA to achieve its purpose. Any delay in implementation will create a disruption in the movement of affected items globally because of disharmony between export control measures implemented by WA members, resulting in tension between member countries. Export controls work best when all countries implement the same export controls in a timely manner. If this rulemaking were delayed to allow for notice and comment and a 30-day delay in effectiveness, it would prevent the United States from fulfilling its commitment to the WA in a timely manner and would injure the credibility of the United States in this and other multilateral regimes.
Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Exports.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Terrorism.
Administrative practice and procedure, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 738, 740, 742, 743, 772 and 774 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:
50 U.S.C. app. 2401
50 U.S.C. app. 2401
(c) * * *
(1)
(a)
(b)
(3) Cameras described in ECCN 6A003.b.3 (having the characteristics listed in 6A002.a.2.a or a.2.b), 6A003.b.4.b, or 6A003.b.4.c may be exported or reexported to and among destinations in Country Group A:1 (see Supplement No. 1 to this part) if:
(i) Such cameras are fully packaged for use as consumer ready civil products; or,
(ii) Such cameras with not more than 111,000 elements are to be embedded in civil products.
The revisions and addition read as follows:
50 U.S.C. app. 2401
(a)
(a) * * *
(2) * * *
(iii) BIS may issue licenses for cameras subject to the license requirement of paragraph (a)(2)(ii) of this section that are fully-packaged for use as consumer-ready civil products that, in addition to the specific transactions authorized by such license, authorize exports and reexports of such cameras without a license to any civil end-user to whom such exports or reexport are not otherwise prohibited by U.S. law in a destination in Country Group A:1 (see Supplement No. 1 to part 740 of the EAR). The license requirements of this paragraph (a)(2) shall not apply to exports or reexports so authorized. In this paragraph, the term “civil end-user” means any entity that is not a national armed service (army, navy, marine, air force, or coast guard), national guard, national police, government intelligence organization or government reconnaissance organization, or any person or entity whose actions or functions are intended to support “military end-uses” as defined in § 744.17(d) of the EAR.
(v) BIS may also issue licenses for the cameras described in paragraph (a)(2)(iv) of this section that, in addition to the specific transactions authorized by such license, authorize exports and reexports to authorized companies described in the license for the purpose
(3)
(4) * * *
(i)
(ii)
50 U.S.C. app. 2401
The revisions read as follows:
(g)
(2)
(3)
(h)
(b)
50 U.S.C. app. 2401
The additions and revisions read as follows:
(a) A single instance of the item;
(b) One customer, for multiple instances of the item.
(a) Allows an arbitrary number of independent `data devices' to communicate directly with each other; and
(b) Is confined to a geographical area of moderate size (
(a) Establishing or managing any of the following:
(1) Accounts or privileges of users or administrators;
(2) Settings of an item; or
(3) Authentication data in support of the tasks described in paragraphs (a)(1) or (2) of this definition;
(b) Monitoring or managing the operating condition or performance of an item; or
(c) Managing logs or audit data in support of any of the tasks described in paragraphs (a) or (b) of this definition.
50 U.S.C. app. 2401
List of Items Controlled
Note 2 to paragraph .a: * * *
List of Items Controlled
Note to paragraph a: For controls on body armor plates, see ECCN 1A613.d.2 and USML Category X(a)(1).
List of Items Controlled
c. * * *
c.2. * * *
c.2.f. “Melt extraction” and “comminution”;
c.2.g. “Mechanical alloying”;
c.2.h. “Plasma atomization”;
List of Items Controlled
The additions and revision read as follows:
List of Items Controlled
d. * * *
d.1. * * *
d.1.b. Materials controlled by 1C008.d to 1C008.f;
The revisions and addition read as follows:
List Based License Exceptions (See Part 740 for a description of all license exceptions)
List of Items Controlled
c. “Technology” for the design or “production” of the following ceramic powders or non-“composite” ceramic materials:
c.1. Ceramic powders having all of the following:
c.1.c. * * *
c.1.c.1. Zirconia (CAS 1314-23-4) with an average particle size equal to or less than 1 μm and no more than 10% of the particles larger than 5 μm;
c.1.c.2. Other ceramic powders with an average particle size equal to or less than 5 μm and no more than 10% of the particles larger than 10 μm;
g. “Libraries” “specially designed” or modified to enable equipment to perform the functions of equipment controlled under 1A004.c or 1A004.d.
The revisions and additions read as follows:
List of Items Controlled
a. * * *
a.1. “Unidirectional positioning repeatability” equal to or less (better) than 1.1 μm along one or more linear axis;
b. * * *
b.1. * * *
b.1.a. “Unidirectional positioning repeatability” equal to or less (better) than 1.1 μm along one or more linear axis;
b.2. * * *
b.2.a. “Unidirectional positioning repeatability” equal to or less (better) than 1.1 μm along one or more linear axis with a travel length less than 1 m;
b.2.b. “Unidirectional positioning repeatability” equal to or less (better) than 1.4 μm along one or more linear axis with a travel length equal to or greater than 1 m and less than 4 m;
b.2.c. “Unidirectional positioning repeatability” equal to or less (better) than 6.0 μm along one or more linear axis with a travel length equal to or greater than 4 m;
b.2.d. Being a `parallel mechanism machine tool';
b.3. A “unidirectional positioning repeatability” for jig boring machines,, equal to or less (better) than 1.1 μm along one or more linear axis;
c. * * *
c.1. * * *
c.1.a. “Unidirectional positioning repeatability” equal to or less (better) than 1.1 μm along one or more linear axis;
c.1.b. Three or more axes which can be coordinated simultaneously for “contouring control”;
c.2. Five or more axes which can be coordinated simultaneously for “contouring control” having any of the following:
c.2.a. “Unidirectional positioning repeatability” equal to or less (better) than 1.1 μm along one or more linear axis with a travel length less than 1m;
c.2.b. “Unidirectional positioning repeatability” equal to or less (better) than 1.4 μm along one or more linear axis with a travel length equal to or greater than 1 m and less than 4 m;
c.2.c. “Unidirectional positioning repeatability” equal to or less (better) than 6.0 μm along one or more linear axis with a travel length equal to or greater than 4 m.
e. * * *
e.2. * * *
e.2.b. A positioning “accuracy” of less (better) than 0.003°;
List of Items Controlled
a.5. * * *
a.5.b. * * *
a.5.b.1. A resolution of 10 bit or more with an `adjusted update rate' of greater than 3,500 MSPS;
a.5.b.2. A resolution of 12-bit or more with an `adjusted update rate' of greater than 1,250 MSPS and having any of the following:
a.7. * * *
a.7.a. A maximum number of single-ended digital input/outputs of greater than 700; or
a.7.b. An `aggregate one-way peak serial transceiver data rate' of 500 Gb/s or greater;
b. * * *
b.7. Converters and harmonic mixers, that are any of the following:
b.7.a. Designed to extend the frequency range of “signal analyzers” beyond 90 GHz;
b.7.b. Designed to extend the operating range of signal generators as follows:
b.7.b.1. Beyond 90 GHz;
b.7.b.2. To an output power greater than 100 mW (20 dBm) anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
b.7.c. Designed to extend the operating range of network analyzers as follows:
b.7.c.1. Beyond 110 GHz;
b.7.c.2. To an output power greater than 31.62 mW (15 dBm) anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
b.7.c.3. To an output power greater than 1 mW (0 dBm) anywhere within the frequency range exceeding 90 GHz but not exceeding 110 GHz;
b.7.d. Designed to extend the frequency range of microwave test receivers beyond 110 GHz;
b.10. Oscillators or oscillator assemblies, specified to operate with a single sideband (SSB) phase noise, in dBc/Hz, less (better) than—(126 + 20log
b.11. * * *
b.11.f. Less than 1 ms for any frequency change exceeding 2.2 GHz within the synthesized frequency range exceeding 56 GHz but not exceeding 90 GHz;
b.11.g. Less than 1 ms within the synthesized frequency range exceeding 90 GHz;
The revisions and addition read as follows:
List of Items Controlled
a.5. * * *
a.5.a. Digitizing rates equal to or more than 200 million samples per second and a resolution of 10 bits or more;
a.5.b. A `continuous throughput' of 2 Gbit/s or more;
a.5.c. Triggered acquisition of transients or aperiodic signals;
c. “Signal analyzers” as follows:
c.1. “Signal analyzers” having a 3 dB resolution bandwidth (RBW) exceeding 10 MHz anywhere within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz;
c.2. “Signal analyzers” having Displayed Average Noise Level (DANL) less (better) than—150 dBm/Hz anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
c.3. “Signal analyzers” having a frequency exceeding 90 GHz;
c.4. * * *
c.4.a. “Real-time bandwidth” exceeding 170 MHz;
d. Signal generators having any of the following:
d.1. Specified to generate pulse-modulated signals having all of the following, anywhere within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz:
d.1.a. `Pulse duration' of less than 25 ns;
d.2. An output power exceeding 100 mW (20 dBm) anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
d.3. * * *
d.3.b. Less than 100 µs for any frequency change exceeding 2.2 GHz within the frequency range exceeding 4.8 GHz but not exceeding 31.8 GHz;
d.3.c. [Reserved]
d.3.d. Less than 500 µs for any frequency change exceeding 550 MHz within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz;
d.3.e. Less than 100 µs for any frequency change exceeding 2.2 GHz within the frequency range exceeding 37 GHz but not exceeding 90 GHz;
d.3.f. [Reserved]
d.4. Single sideband (SSB) phase noise, in dBc/Hz, specified as being any of the following:
d.4.a. Less (better) than—(126 + 20 log
d.4.b. Less (better) than—(206 − 20log
d.5. A maximum frequency exceeding 90 GHz;
e. * * *
e.1. An output power exceeding 31.62 mW (15 dBm) anywhere within the operating frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
e.2. An output power exceeding 1 mW (0 dBm) anywhere within the operating frequency range exceeding 90 GHz but not exceeding 110 GHz;
List of Items Controlled
d. Field programmable logic devices having a maximum number of single-ended digital input/outputs between 200 and 700;
The revisions read as follows:
List Based License Exceptions (See Part 740 for a description of all license exceptions)
List of Items Controlled
f. * * *
f.1. * * *
f.1.a. A light source wavelength shorter than 193 nm;
f.1.b. Capable of producing a pattern with a “Minimum Resolvable Feature size” (MRF) of 45 nm or less;
f.2 Imprint lithography equipment capable of production features of 45 nm or less;
List Based License Exceptions (See Part 740 for a description of all license exceptions)
List Based License Exceptions (See Part 740 for a description of all license exceptions)
The revisions read as follows:
List Based License Exceptions (See Part 740 for a description of all license exceptions)
Special Conditions for STA
List of Items Controlled
b. * * *
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 1.0 Weighted TeraFLOPS (WT);
The revisions read as follows:
List Based License Exceptions (See Part 740 for a description of all license exceptions)
Special Conditions for STA
List of Items Controlled
b. * * *
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 1.0 Weighted TeraFLOPS (WT);
The revision and addition read as follows:
Note 6: “APP” values must be calculated for processor combinations containing processors “specially designed” to enhance performance by aggregation, operating simultaneously and sharing memory
List of Items Controlled
c. * * *
c.1. Equipment employing digital techniques designed to operate at a “total digital transfer rate” exceeding 560 Gbit/s;
The revisions and additions read as follows:
List of Items Controlled
a. Systems, equipment and components, for “information security”, as follows:
a.2. Designed or modified to perform `cryptanalytic functions';
a.9. Designed or modified to use or perform “quantum cryptography.”
b. Systems, equipment and components, designed or modified to enable, by means of “cryptographic activation”, an item to achieve or exceed the controlled performance levels for functionality specified by 5A002.a that would not otherwise be enabled.
The revisions read as follows:
List of Items Controlled
c. * * *
c.2. * * *
d. “Software” designed or modified to enable, by means of “cryptographic activation,” an item to achieve or exceed the controlled performance levels for functionality specified by 5A002.a that would not otherwise be enabled.
List of Items Controlled
b. “Technology” to enable, by means of “cryptographic activation,” an item to achieve or exceed the controlled performance levels for functionality specified by 5A002.a that would not otherwise be enabled.
The revisions and additions read as follows:
List of Items Controlled
a.1. * * *
a.1.a. * * *
a.1.a.2 * * *
a.1.a.2.a. * * *
a.1.a.2.a.2. `Sounding rate' greater than 3,800 m/s;
a.1.a.3. Side Scan Sonar (SSS) or Synthetic Aperture Sonar (SAS), designed for seabed imaging and having all of the following, and specially designed transmitting and receiving acoustic arrays therefor:
a.1.c. * * *
a.1.c.1. Operating at frequencies below 10 kHz and having any of the following:
a.1.c.1.a. Not designed for continuous operation at 100% duty cycle and having a radiated ‘free-field Source Level (SL
a.1.c.1.b. Designed for continuous operation at 100% duty cycle and having a continuously radiated ‘free-field Source Level (SL
The revisions read as follows:
License Requirements
Reporting Requirements See § 743.3 of the EAR for thermal camera reporting for exports that are not authorized by an individually validated license of thermal imaging cameras controlled by ECCN 6A003.b.4.b to destinations in Country Group A:1 (see Supplement No. 1 to part 740 of the EAR), must be reported to BIS.
List of Items Controlled
a.3. Mechanical or electronic streak cameras as follows:
a.3.a. Mechanical streak cameras having writing speeds exceeding 10 mm/μs;
a.3.b. Electronic streak cameras having temporal resolution better than 50 ns;
b. ***
b.4. ***
b.4.c. ***
The revisions and additions read as follows:
List Based License Exceptions (See Part 740 for a description of all license exceptions)
List of Items Controlled
a.1. “Deformable mirrors” having an active optical aperture greater than 10 mm and having any of the following, and specially designed components therefor:
a.1.a. Having all the following:
a.1.a.1. A mechanical resonant frequency of 750 Hz or more;
a.1.a.2. More than 200 actuators;
a.1.b. A Laser Induced Damage Threshold (LIDT) being any of the following:
a.1.b.1. Greater than 1 kW/cm
a.1.b.2. Greater than 2 J/cm
a.4. Mirrors specially designed for beam steering mirror stages specified in 6A004.d.2.a with a flatness of λ/10 or better (λ is equal to 633 nm) and having any of the following:
a.4.a. Diameter or major axis length greater than or equal to 100 mm;
a.4.b. Having all of the following:
a.4.b.1. Diameter or major axis length greater than 50 mm but less than 100 mm;
a.4.b.2. A Laser Induced Damage Threshold (LIDT) being any of the following:
a.4.b.2.a. Greater than 10 kW/cm2 using a “CW laser”;
a.4.b.2.b. Greater than 20 J/cm2 using 20 ns “laser” pulses at 20 Hz repetition rate;
d. ***
d.2. Steering, tracking, stabilisation and resonator alignment equipment as follows:
d.2.a. Beam steering mirror stages designed to carry mirrors having diameter or major axis length greater than 50 mm and having all of the following, and specially designed electronic control equipment therefor:
d.2.a.1. A maximum angular travel of ±26 mrad or more;
d.2.a.2. A mechanical resonant frequency of 500 Hz or more;
d.2.a.3. An angular accuracy of 10 μrad (microradians) or less;
d.2.b. Resonator alignment equipment having bandwidths equal to or more than 100 Hz and an accuracy of 10 μrad or less;
The revision and additions read as follows:
List of Items Controlled
e. ***
e.2. Optical mirrors or transmissive or partially transmissive optical or electro-optical-”components,” other than fused tapered fiber combiners and Multi-Layer Dielectric gratings (MLDs), “specially designed” for use with controlled “lasers”;
e.3. Fiber laser “components” as follows:
e.3.a. Multimode to multimode fused tapered fiber combiners having all of the following:
e.3.a.1. An insertion loss better (less) than or equal to 0.3 dB maintained at a rated total average or CW output power (excluding output power transmitted through the single mode core if present) exceeding 1,000 W;
e.3.a.2. Number of input fibers equal to or greater than 3;
e.3.b. Single mode to multimode fused tapered fiber combiners having all of the following:
e.3.b.1. An insertion loss better (less) than 0.5 dB maintained at a rated total average or CW output power exceeding 4,600 W;
e.3.b.2. Number of input fibers equal to or greater than 3;
e.3.b.3. Having any of the following:
e.3.b.3.a. A Beam Parameter Product (BPP) measured at the output not exceeding 1.5 mm mrad for a number of input fibers less than or equal to 5;
e.3.b.3.b. A BPP measured at the output not exceeding 2.5 mm mrad for a number of input fibers greater than 5;
e.3.c. MLDs having all of the following:
e.3.c.1. Designed for spectral or coherent beam combination of 5 or more fiber lasers;
e.3.c.2. CW Laser Induced Damage Threshold (LIDT) greater than or equal to 10 kW/cm
List of Items Controlled
a.1. Titanium doped sapphire;
a.2. [Reserved]
b. Rare-earth-metal doped double-clad fibers having any of the following:
b.1. Nominal laser wavelength of 975 nm to 1,150 nm and having all of the following:
b.1.a. Average core diameter equal to or greater than 25 μm;
b.1.b. Core `Numerical Aperture' (`NA') less than 0.065;
b.2. Nominal laser wavelength exceeding 1,530 nm and having all of the following:
b.2.a. Average core diameter equal to or greater than 20 μm;
b.2.b. Core `NA' less than 0.1.
The addition and revision read as follows:
List of Items Controlled
Items:
OPTICS
d. “Software” specially designed to maintain the alignment and phasing of segmented mirror systems consisting of mirror segments having a diameter or major axis length equal to or larger than 1 m;
List of Items Controlled
The revisions read as follows:
List of Items Controlled
c. “Fly-by-wire systems” or “fly-by-light systems“;
The revisions and additions read as follows:
List of Items Controlled
b. “Development” “technology”, as follows, for “active flight control systems” (including “fly-by-wire systems” or “fly-by-light systems”):
b.1. Photonic-based “technology” for sensing aircraft or flight control component state, transferring flight control data, or commanding actuator movement, “required” for “fly-by-light systems” “active flight control systems”;
b.7. “Technology” “required” for deriving the functional requirements for “fly-by-wire systems” having all of the following:
b.7.a. `Inner-loop' airframe stability controls requiring loop closure rates of 40 Hz or greater;
b.7.b. Having any of the following:
b.7.b.1. Corrects an aerodynamically unstable airframe, measured at any point in the design flight envelope, that would lose recoverable control if not corrected within 0.5 seconds;
b.7.b.2. Couples controls in two or more axes while compensating for `abnormal changes in aircraft state';
b.7.b.3. Performs the functions specified in 7E004.b.5;
b.7.b.4. Enables aircraft to have stable controlled flight, other than during take-off or landing, at greater than 18 degrees angle of attack, 15 degrees side slip, 15 degrees/second pitch or yaw rate, or 90 degrees/second roll rate;
b.8. “Technology” “required” for deriving the functional requirements of “fly-by-wire systems” to achieve all of the following:
b.8.a. No loss of control of the aircraft in the event of a consecutive sequence of any two individual faults within the “fly-by-wire system”;
b.8.b. Probability of loss of control of the aircraft being less (better) than 1×10
List of Items Controlled
f. Closed and semi-closed circuit (rebreathing) apparatus “specially designed” or modified for military use and not enumerated elsewhere in the CCL or in the USML.
The revision and additions read as follows:
List Based License Exceptions (See Part 740 for a description of all license exceptions)
License Exceptions Note: License Exception TSU is not applicable for the repair “technology” controlled by 8E002.a or .b, see Supplement No. 2 to this part.
List of Items Controlled
c. “Technology” according to the General Technology Note for the “development” or “production” of any of the following:
c.1. Surface-effect vehicles (fully skirted variety) having all of the following:
c.1.a. Maximum design speed, fully loaded, exceeding 30 knots in a significant wave height of 1.25 m or more;
c.1.b. Cushion pressure exceeding 3,830 Pa;
c.1.c. Light-ship-to-full-load displacement ratio of less than 0.70;
c.2. Surface-effect vehicles (rigid sidewalls) with a maximum design speed, fully loaded, exceeding 40 knots in a significant wave height of 3.25 m or more;
c.3. Hydrofoil vessels with active systems for automatically controlling foil systems, with a maximum design speed, fully loaded, of 40 knots or more in a significant wave height of 3.25 m or more;
c.4. ‘Small waterplane area vessels' having any of the following:
c.4.a. Full load displacement exceeding 500 tonnes with a maximum design speed, fully loaded, exceeding 35 knots in a significant wave height of 3.25 m or more;
c.4.b. Full load displacement exceeding 1,500 tonnes with a maximum design speed, fully loaded, exceeding 25 knots in a significant wave height of 4 m or more.
List of Items Controlled
The revisions read as follows:
List of Items Controlled
b. Whose design or production origins are either not from a Wassenaar Participating State (see Supplement No. 1 to part 743 of the EAR) or unknown to the manufacturer.
The revisions and addition read as follows:
License Requirements
License Requirement Note: 9A004.a through .f are controlled under ECCN 9A515.
a. Space launch vehicles;
b. “Spacecraft”;
c. “Spacecraft buses”;
d. “Spacecraft payloads” incorporating items specified by 3A001.b.1.a.4, 3A002.g, 5A001.a.1, 5A001.b.3, 5A002.a.5, 5A002.a.9, 6A002.a.1, 6A002.a.2, 6A002.b, 6A002.d, 6A003.b, 6A004.c, 6A004.e, 6A008.d, 6A008.e, 6A008.k, 6A008.l or 9A010.c;
e. On-board systems or equipment, specially designed for “spacecraft” and having any of the following functions:
e.1. `Command and telemetry data handling';
e.2. `Payload data handling';
e.3. `Attitude and orbit control';
f. Terrestrial equipment, specially designed for “spacecraft” as follows:
f.1. Telemetry and telecommand equipment;
f.2. Simulators.
a. “Parts”, “components” and structures, each exceeding 10 kg and “specially designed” for launch vehicles manufactured using any of the following:
a.1. “Composite” materials consisting of “fibrous or filamentary materials” specified by 1C010.e and resins specified by 1C008 or 1C009.b;
a.2. Metal “matrix” “composites” reinforced by any of the following:
a.2.a. Materials specified by 1C007;
a.2.b. “Fibrous or filamentary materials” specified by 1C010;
a.2.c. Aluminides specified by 1C002.a;
a.3. Ceramic “matrix” “composite” materials specified by 1C007;
b. “Parts”, “components” and structures, “specially designed” for launch vehicle propulsion systems specified by 9A005 to 9A009, manufactured using any of the following:
b.1. “Fibrous or filamentary materials” specified by 1C010.e and resins specified by 1C008 or 1C009.b;
b.2. Metal “Matrix “composites” reinforced by any of the following:
b.2.a. Materials specified by 1C007;
b.2.b. “Fibrous or filamentary materials” specified by 1C010;
b.2.c. Aluminides specified by 1C002.a;
b.3. Ceramic “matrix” “composite” materials specified by 1C007;
c. Structural components and isolation systems, specially designed to control actively the dynamic response or distortion of “spacecraft” structures;
d. Pulsed liquid rocket engines with thrust-to-weight ratios equal to or more than 1 kN/kg and a response time (the time required to achieve 90% of total rated thrust from start-up) of less than 30 ms.
The revisions read as follows:
License Requirements
List of Items Controlled
a.1. Having all of the following:
a.1.a. A maximum `endurance' greater than or equal to 30 minutes but less than 1 hour; and
a.1.b. Designed to take-off and have stable controlled flight in wind gusts equal to or exceeding 46.3 km/h (25 knots);
a.2. A maximum `endurance' of 1 hour or greater;
b. Related equipment and “components”, as follows:
b.1 [Reserved]
b.2. [Reserved]
b.4. Air breathing reciprocating or rotary internal combustion type engines, “specially designed” or modified to propel “UAVs” or unmanned “airships”, at altitudes above 15,240 meters (50,000 feet).
Note: 9A012 does not control model aircraft or model “airships”.
The revisions and addition read as follows:
Special Conditions for STA
List of Items Controlled
b. Cores or shells (moulds), specially designed for casting, manufactured from refractory metals or ceramics;
c. Directional-solidification or single-crystal additive-manufacturing equipment.
List of Items Controlled
c. “Software” “specially designed” to control directional solidification or single crystal material growth in equipment specified by 9B001.a or 9B001.c;
e. “Software” “specially designed” or modified for the operation of items specified by 9A012;
The revisions and addition read as follows:
License Requirements
List of Items Controlled
a.3. “Parts” or “components,” that are any of the following:
a.3.a. Manufactured from organic “composite” materials designed to operate above 588 K (315 °C);
a.3.b. Manufactured from any of the following:
a.3.b.1. Metal “matrix” “composites” reinforced by any of the following:
a.3.b.1.a. Materials controlled by 1C007;
a.3.b.1.b. “Fibrous or filamentary materials” specified by 1C010;
a.3.b.1.c. Aluminides specified by 1C002.a;
a.3.b.2. Ceramic “matrix” “composites” specified by 1C007;
a.3.c. Stators, vanes, blades, tip seals (shrouds), rotating blings, rotating blisks or `splitter ducts', that are all of the following:
a.3.c.1. Not specified in 9E003.a.3.a;
a.3.c.2. Designed for compressors or fans;
a.3.c.3. Manufactured from material controlled by 1C010.e with resins controlled by 1C008;
a.4. Uncooled turbine blades, vanes or “tip shrouds” designed to operate at a `gas path temperature' of 1,373 K (1,100 °C) or more;
h. * * *
h.3. * * *
j. “Technology” “required” for the “development” of wing-folding systems designed for fixed-wing aircraft powered by gas turbine engines.
The revisions read as follows:
(i) 2D001—“Software”, other than that controlled by 2D002, specially designed for the “development” or “production” of equipment as follows:
(A) Machine tools for turning (ECCN 2B001.a) having all of the following:
(1) “Unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; and
(2) Two or more axes which can be coordinated simultaneously for “contouring control”;
(B) Machine tools for milling (ECCN 2B001.b) having any of the following:
(1) Having all of the following:
(a) “Unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; and
(b) Three linear axes plus one rotary axis which can be coordinated simultaneously for “contouring control”;
(2) Specified by 2B001.b.2.a, 2B001.b.2.b or 2B001.b.2.c and having a “unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; or
(3) A “unidirectional positioning repeatability” for jig boring machines equal to or less (better) than 1.1 µm along one or more linear axis;
(C) Electrical discharge machines (EDM) controlled under 2B001.d;
(D) Deep-hole-drilling machines controlled under 2B001.f;
(E) “Numerically controlled” or manual machine tools controlled under 2B003.
(ii) 2E001—“Technology” according to the General Technology Note for the “development” of “software” specified by 2D001 described in this Supplement or for the “development” of equipment as follows:
(A) Machine tools for turning (ECCN 2B001.a) having all of the following:
(1) “Unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; and
(2) Two or more axes which can be coordinated simultaneously for “contouring control”;
(B) Machine tools for milling (ECCN 2B001.b) having any of the following:
(1) Having all of the following:
(a) “Unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; and
(b) Three linear axes plus one rotary axis which can be coordinated simultaneously for “contouring control”;
(2) Specified by 2B001.b.2.a, 2B001.b.2.b or 2B001.b.2.c and having a “unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; or
(3) A “unidirectional positioning repeatability” for jig boring machines equal to or less (better) than 1.1 µm along one or more linear axis;
(C) Electrical discharge machines (EDM) controlled under 2B001.d;
(D) Deep-hole-drilling machines controlled under 2B001.f;
(E) “Numerically controlled” or manual machine tools controlled under 2B003.
(iii) 2E002—“Technology” according to the General Technology Note for the “production” of equipment as follows:
(A) Machine tools for turning (ECCN 2B001.a) having all of the following:
(1) “Unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; and
(2) Two or more axes which can be coordinated simultaneously for “contouring control”;
(B) Machine tools for milling (ECCN 2B001.b) having any of the following:
(1) Having all of the following:
(a) “Unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; and
(b) Three linear axes plus one rotary axis which can be coordinated simultaneously for “contouring control”;
(2) Specified by 2B001.b.2.a, 2B001.b.2.b or 2B001.b.2.c and having a “unidirectional positioning repeatability” equal to or less (better) than 1.1 µm along one or more linear axis; or
(3) A “unidirectional positioning repeatability” for jig boring machines equal to or less (better) than 1.1 µm along one or more linear axis;
(C) Electrical discharge machines (EDM) controlled under 2B001.d;
(D) Deep-hole-drilling machines controlled under 2B001.f;
(E) “Numerically controlled” or manual machine tools controlled under 2B003.
(ii) 9B001
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice of proposed rulemaking (NPRM).
This document sets forth an interpretation of the definition of “motor vehicle equipment” in the United States Code, as amended by the Moving Ahead for Progress in the 21st Century (MAP-21) Act, and requests comments on two proposed changes to the motorcycle helmet safety standard, Federal Motor Vehicle Safety Standard (FMVSS) No. 218. Continued high levels of motorcycle related fatalities, the ongoing use of novelty helmets by motorcyclists and the poor performance of these helmets in tests and crashes have prompted the agency to clarify the status of such helmets under federal law to ensure that all relevant legal requirements are readily enforceable. All helmets that are sold to, and worn on the highway by, motorcyclists and that, based on their design and/or other factors, have the apparent purpose of protecting highway users are motorcycle helmets subject to the jurisdiction and standard of the National Highway Traffic Safety Administration (“NHTSA” or “agency”).
NHTSA is simultaneously proposing to amend its helmet standard, FMVSS No. 218. First, NHTSA is proposing to add a definition of “motorcycle helmet.” Second, we are proposing to modify the existing performance requirements of the standard by adding a set of dimensional and compression requirements. These requirements and the associated test procedures would identify those helmets whose physical characteristics indicate that they likely cannot meet the existing performance requirements of the standard. Third, we are incorporating an optional alternative compliance process for manufacturers whose helmets do not comply with the proposed dimensional and compression requirements, but do comply with the performance requirements and all other aspects of FMVSS No. 218. NHTSA will publish a list of helmets that have complied with the alternative compliance process and can therefore be certified by their manufacturers. This document is the result of the agency's assessment of other actions that could be taken to increase further the percentage of motorcyclists who wear helmets that comply with the helmet standard.
You should submit your comments to ensure that Docket Management receives them not later than July 20, 2015. The incorporation by reference of certain publications listed in the proposed rule is approved by the Director of the Federal Register as of May 22, 2017.
You may submit comments to the docket number identified in the heading of this document by any of the following methods:
•
•
•
•
See the
For non-legal issues, you may contact Ms. Claudia Covell, Office of Vehicle Safety Compliance (Telephone: 202-366-5293) (Fax: 202-366-7002). For legal issues, you may contact Mr. Otto Matheke, Office of the Chief Counsel (Telephone: 202-366-5253) (Fax: 202-366-3820). You may send mail to these officials at: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
The purpose of this regulatory action is to reduce fatalities and injuries resulting from traffic accidents involving use of motorcycle helmets that fail to meet Federal Motor Vehicle Safety Standard (FMVSS) No. 218, Motorcycle helmets. Motorcycle crash-related fatalities are disproportionately high, compared as a measure of exposure, among all motor vehicle crash fatalities. In part, these fatalities can be attributed to the high number of motorcyclists wearing sub-standard motorcycle helmets. For example, NHTSA's National Occupant Protection
These helmets, frequently marketed as “novelty” helmets, are seldom certified by the manufacturer as meeting Standard No. 218, but are sold to, and used by, on-road motorcycle riders and passengers.
These novelty helmets are frequently sold as “motorcycle novelty helmets” or otherwise marketed to on-road motorcycle riders. However, these novelty helmets are usually offered along with a disclaimer that the helmet does not meet Standard No. 218, is not a protective device or is not intended for highway use. In States where universal helmet use laws often require riders and passengers to wear helmets meeting Standard No. 218, helmet users wearing novelty helmets often affix labels to their helmets that mimic the certification labels applied by manufacturers of helmets that are certified as meeting the Standard. Consequently, officials attempting to enforce compulsory helmet use laws in those States requiring that riders use helmets meeting Standard No. 218 currently find it difficult to enforce these laws to prevent the use of these novelty helmets.
In 2011, NHTSA attempted to make it easier for riders and law enforcement officials to identify non-compliant helmets by amending FMVSS No. 218 to require that all compliant helmets manufactured after May 13, 2013 have a certification decal which includes the phrase “FMVSS No. 218”, the helmet manufacturer's name or brand name of the helmet and the word “certified.” The new requirements were intended to make decals more difficult to counterfeit. However, this regulatory change has not been sufficient to solve the problem. Prior to May 13, 2013, the certification label requirements of FMVSS No. 218 stated simply that the certification label must consist of the letters “DOT” printed in a specified size range and located in a designated area on the rear of helmet. Facsimiles of that earlier label are widely available and are often added by “novelty helmet” users in mandatory helmet law states to their helmets to give them the appearance of a compliant helmet certified before the May 2013 change to the labeling requirements.
There are no regulatory limits on the age of motorcycle helmets that may be used to comply with a state motorcycle helmet use law. Therefore, a helmet user could assert that the wearing of a helmet manufactured prior to the May 2013 change to the certification label requirements meets the requirements of state helmet laws requiring use of an FMVSS No. 218 compliant helmet if the manufacturer properly certified the helmet with the three character “DOT” label. Until a sufficient period of time passes to establish that a helmet bearing the older certification label is likely to have not been certified as FMVSS No. 218 compliant by the manufacturer, a helmet with the older certification label would appear to be a compliant helmet. Novelty helmet users will be able to employ the counterfeit versions of the old certification label for many years into the future.
To enhance NHTSA's ability to restrict the sale and subsequent use of novelty helmets, as well as assisting State law enforcement officials in enforcing laws requiring use of compliant helmets, this document contains an interpretation of the definition of “motor vehicle equipment” as defined by the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), proposes adding a definition of “motorcycle helmet” to FMVSS No. 218 consistent with 49 U.S.C. 30102(a)(7)(C) as amended by the MAP-21 Act, and also proposes modifying the existing requirements of Standard No. 218. It is the agency's view that adoption of these proposals will reduce fatalities and injuries attributable to the use of non-compliant helmets by increasing successful prosecutions in mandatory helmet law states, reducing the demand for novelty helmets and augmenting NHTSA's ability to prevent the importation and sale of non-compliant helmets.
Novelty helmets are sold to be worn by motorcycle riders for road use. However, these helmets provide little or no head protection in crashes. The proposed rule would assist local enforcement agencies in determining compliance with their State helmet laws and mitigate the fatalities, injuries, and societal costs that are caused by the use of improper helmets. The deterrent intent of the proposed rule is similar to other enforcement improving approaches such as the improvement of counterfeit currency detection.
NHTSA believes that at least some portion of novelty helmet use results from inadequate or asymmetric information, a major indication of market failure. Reasons for novelty helmet use may vary, but likely include some misjudgment regarding the risk associated with motorcycles and false expectations regarding the amount of protection that would be provided by some novelty helmet designs. In general, problems of inadequate information can be addressed by providing greater information to the public. NHTSA has attempted to do this through public education materials identifying the significant differences between novelty helmets and compliant helmets and expanded test programs identifying helmets that failed to meet the performance requirements of FMVSS No. 218. In the latter instance, NHTSA found that the difficulties and costs associated with attempting to test all the helmets in the marketplace could not be sustained. At the same time, critics of the expanded test program were quick to note that the results were incomplete. Efforts at increased public education regarding the risks and characteristics of novelty helmets also did not achieve desired results. Neither initiative resulted in any apparent reduction in the sale and use of novelty helmets.
In addition to riders' misperceptions, novelty helmets can be lower cost, and some consumers find them to be more comfortable or stylish. When consumers choose to wear novelty helmets, it unnecessarily reduces their safety and burdens society with an unnecessary diversion of economic resources. Roughly three quarters of all economic costs from motor vehicle crashes are borne by society at large through taxes that support welfare payment mechanisms, insurance premiums, charities, and unnecessary travel delay. These costs may be even higher for motorcycle riders, who often experience more serious injuries when colliding
NHTSA has worked with state law enforcement and safety officials for decades. The agency has repeatedly received reports from these sources regarding the difficulty of enforcing state helmet laws when the state law provides that a helmet must meet FMVSS No. 218. A series of court decisions from Washington State illustrate the difficulties that local law enforcement agencies face in enforcing mandatory helmet laws. These decisions implied that FMVSS No. 218 is a complex performance standard intended to apply to helmet manufacturers and not to helmet users and did not address the difficulties of proof for law enforcement agency to show that a helmet does not meet FMVSS No. 218. This proposed rule seeks to remedy this problem by the adoption of objective physical criteria which can be employed by helmet users and law enforcement officials to determine if a helmet complies with FMVSS No. 218.
NHTSA is issuing an interpretation of the statutory definition of “motor vehicle equipment” as amended by the MAP-21 Act. This interpretation sets forth the agency's position on which helmets are subject to NHTSA's jurisdiction and, therefore, must meet Standard No. 218. The original definition of “motor vehicle equipment” in the Vehicle Safety Act of 1966 did not include protective equipment such as motorcycle helmets. In 1970, Congress amended the Safety Act to substantially expand the foregoing definition. The 1970 amendment changed the definition of “motor vehicle equipment” to include “any device, article or apparel . . . manufactured, sold, delivered, offered or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users from the risk of accident, injury or death.” In 2012, the MAP-21 Act modified this definition of “motor vehicle equipment” in two ways. First, the definition was amended by specifically adding the term “motorcycle helmet” to the description of regulated items. Second, the MAP-21 Act amended the definition of “motor vehicle equipment” by replacing the phrase “. . . manufactured, sold, delivered, offered or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users . . .” with “. . . manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding motor vehicles and highway users . . .”
The agency's interpretation of this definition, based on an examination of the text of the 2012 MAP-21 amendment and the evolution of the original 1970 definition before its enactment as well as its legislative history, concludes that Congress meant to grant NHTSA authority to regulate motorcycle helmets and that any determination of what constitutes motor vehicle equipment must be governed by an objective standard and not controlled by the subjective intent of a manufacturer or seller. This conclusion is supported by the explicitly pronounced Congressional goal of reducing fatalities and injuries resulting from the use of helmets that did not provide a minimum level of safety. The agency's interpretation further notes the absence of any suggestion in the legislative history that Congress meant to have the definition negated by subjective declarations of intended use that are contrary to an objective measure of actual sale, use and “apparent purpose.”
By applying the objective criterion of an “apparent purpose to safeguard” highway users, NHTSA concludes that novelty helmets are items of motor vehicle equipment. If a helmet is marketed and sold to highway users and has outward characteristics consistent with providing some level of protection to the wearer, such a helmet is a “motorcycle helmet” with the “apparent purpose” of protecting highway users from harm. It is, therefore, “motor vehicle equipment.” Under the foregoing circumstances, the addition of a label stating the manufacturer's subjective intent that a helmet is “not protective equipment,” “not DOT certified,” or “not for highway use” would, in NHTSA's view, not be sufficient to conclude that a helmet is not “motor vehicle equipment.”
This document also proposes adding a definition of “motorcycle helmet” to Standard No. 218 to effectuate the interpretation of the statutory definition of motor vehicle equipment described above. The proposed definition seeks to more clearly establish those helmets that are required to comply with FMVSS No. 218 by establishing conditions dictating which helmets will be considered as being intended for highway use.
NHTSA's proposed definition of “motorcycle helmet” establishes that “hard shell headgear” meeting any of four conditions are motorcycle helmets. The criteria relate to the manufacture, importation, sale, and use of the headgear in question. First, a helmet is a motorcycle helmet if it is manufactured or offered for sale with the apparent purpose of safeguarding highway users against risk of accident, injury, or death. Under the second criterion, a helmet is a motorcycle helmet if it is manufactured or sold by entities also dealing in certified helmets or other motor vehicle equipment and apparel for motorcycles or motorcyclists. The third proposed criterion states that a helmet is a motorcycle helmet if it is described or depicted as a motorcycle helmet in packaging, promotional information or advertising. The fourth criterion states that helmets presented for importation as motorcycle helmets in the Harmonized Tariff Schedule would also be motorcycle helmets.
Because the second, third and fourth criteria may capture helmets sold legitimately for off-road use or non-motor vehicle applications, NHTSA's proposed definition exempts helmets labeled as meeting recognized safety standards for off-highway uses from the proposed definition.
NHTSA is also proposing modifications to the criteria helmets must meet in order to comply with Standard No. 218. The proposal seeks to establish in S5.1 (as proposed), a set of threshold requirements to distinguish helmets that qualify for testing to the existing performance requirements of the Standard in S5.2 through and including S5.4. These threshold requirements are hereafter called preliminary screening requirements. The preliminary screening criteria proposed in S5.1 are dimensional and
The agency proposes to add these preliminary screening requirements to alleviate the test burdens of NHTSA's current compliance test program. By reducing the complexity of compliance testing, the proposal would allow the agency to test more helmet brands and models without increased costs. The proposed requirements also address concerns by test laboratories that their equipment will be damaged while testing sub-standard helmets. Moreover, by establishing a set of physical criteria that may be employed to identify non-compliant helmets, these proposed requirements will assist in the enforcement of helmet laws specifying that motorcycle riders must wear helmets meeting Standard No. 218.
The proposed preliminary screening requirements specify that any helmet with an inner liner that is less than 0.75 inch (19 mm) thick would be considered incapable of complying with FMVSS No. 218. Similarly, any helmet with an inner liner and shell having a combined thickness less than 1 inch (25 mm) would also presumably not be able to comply with the standard. This document also proposes that any helmet, even those with an inner liner meeting the minimum thickness criteria or the liner and shell combination meeting the overall thickness, must also be sufficiently resistant to deformation to ensure that the liner is capable of some level of energy absorption.
The document also sets forth proposals for measuring compliance with the preliminary screening requirements. Inner liner thickness could be measured with a thin metal probe. Measuring the combined thickness of the outer shell and inner liner could be taken using a large caliper or measuring the distance derived by noting the difference between the topmost point of a stand supporting the helmet and the topmost point of the helmet on the stand. The document also proposes that liner deformation be measured after applying force using a weighted probe or a dial indicator force gauge. To reduce the possibility of error caused by variations in helmet designs, NHTSA is proposing that the measurements of inner liner thickness, combined helmet/inner liner thickness and inner liner compression characteristics be conducted at the crown or apex of the helmet.
To address concerns that the proposed preliminary screening requirements may adversely affect the adoption and development of new helmet technologies and materials, the proposed amendments also set forth an alternative compliance process, in a proposed Appendix. This alternative compliance process provides helmet manufacturers with a means to demonstrate that helmets that do not adhere to the preliminary screening requirements can otherwise be properly certified and are capable of meeting all of the other requirements of Standard No. 218.
The benefits of the proposed rule are based on the use of the dimensional and compression requirements and the proposed Appendix as criteria to distinguish certified from non-certified motorcycle helmets. Behavioral change among motorcycle riders as a result of the rule is difficult to predict. However, the agency believes that 5 to 10 percent of the novelty helmet users in States that have a Universal Helmet Law would eventually make a switch to avoid being ticketed or fined, and that this is a modest and achievable projection. As a result, the proposal would save 12 to 48 lives annually. In addition, the analysis also estimates the maximum potential benefit of the rule which corresponds to a hypothetical scenario of all novelty helmet users in States that have universal helmet laws becoming 218-certified helmet users (the 100-percent scenario). Under this hypothetical 100-percent scenario, 235 to 481 lives would be saved. Note that this 100-percent scenario is theoretical since some novelty-helmeted motorcyclists would still be expected to circumvent the helmet laws by continuing taking the risk of wearing novelty helmets. Therefore, the estimated costs and benefits for the 100-percent scenario are not used (and not appropriate) for determining the effects of the proposed rule. However, they do indicate the potential savings in social costs that are offered by FMVSS No. 218-compliant helmets and the importance of educating the public to this potential. The discounted annualized costs and benefits are presented below. The numbers exclude benefits from nonfatal injuries prevented as well as private disbenefits to riders who prefer to wear novelty helmets, but switch to compliant helmets to avoid law enforcement. Since these benefits are obtained in violation of State law, their status is uncertain. A more detailed discussion of this issue is included in the Non-quantified impacts section of the PRIA. We are not assuming for this analysis that any novelty helmet users in States that do
There is a pressing need for improvements in motorcycle safety. As shown in NHTSA's research, motorcycle crash-related fatalities have been disproportionately high, compared as a measure of exposure, among all motor vehicle crash fatalities. According to the Fatality Analysis Reporting System (FARS), motorcyclist
In contrast to the total number of passenger vehicle and pedestrian fatalities, which have decreased over the past decade, motorcyclist fatalities increased significantly. Some claim this is due to increased exposure; however, registrations for both motorcycle and passenger vehicles have increased over this time period, yet it is only motorcyclist fatalities which have risen. In 2011, motorcycles accounted for only about 3 percent of all registered vehicles and 0.6 percent of all vehicle miles traveled (VMT)
Over the same time period, the number of motorcyclists injured increased from 65,000 in 2002 to 81,000 in 2011 accounting for 4 percent of all occupant injuries.
The most common fatal injuries sustained by motorcyclists are injuries to the head.
The National Transportation Safety Board (NTSB) has also made a similar assessment of the motorcycle safety problem. They issued a November 2010 safety alert titled “Motorcycle Deaths Remain High”.
Compared to 2010, overall traffic fatalities fell by 2 percent in 2011. Occupant fatalities fell by 4 percent in passenger cars and, 5 percent in light trucks. However, occupant fatalities increased by 20 percent in large trucks and 2 percent on motorcycles. In addition, pedestrian fatalities increased by 3 percent and pedalcyclist fatalities increased by 9 percent.
The 2011 increase in motorcycle occupant fatalities followed a 3 year period of decline. The agency notes that the 2008, 2009 and 2010 reductions in fatalities and injuries coincided with a significant economic downturn. Past economic downturns have resulted in similar declines. The three most notable periods of across-the-board declines in overall traffic fatalities, including the current period, coincide with the three most significant economic downturns since the early 1970s. Following the first and second economic downturns, the overall number of fatalities nearly rebounded to the previous levels. The agency observes that motorcycle occupant fatalities increased slightly in 2011 and anticipates that they will likewise rebound as the economy improves. Even with the 2008-10 reductions in fatalities and injuries, motorcyclist fatalities remain far above 2002 levels.
NHTSA's comprehensive motorcycle safety program
While a number of factors are believed to account for this increase in fatalities, including expanding motorcycle sales, increases in the percentage of older riders, and increases in engine size, motorcyclist head injuries are a leading cause of death. Effectively addressing motorcyclist head injuries or any other motor vehicle safety problem requires a multi-pronged, coordinated program in all of the areas of the Haddon Matrix, as shown in Table 1. Because no measure in any of the nine areas is a complete solution, the implementation of a measure in one area does not eliminate or reduce the need to implement measures in the other areas.
For example, while NHTSA encourages efforts in all areas of the motorcycle safety matrix below, including the offering of motorcyclist training, such training cannot substitute for wearing a helmet that complies with FMVSS No. 218. The results of studies examining the effectiveness of motorcyclist training in actually reducing crash involvement are mixed.
While basic rider courses teach important skills, the effectiveness of training as a safety countermeasure to reduce motorcycle crashes is unclear. Studies conducted in the United States and abroad to evaluate rider training have found mixed evidence for the effect of rider training on motorcycle crashes.
Mitigating
In November 2010, the NTSB issued a Safety Alert in which that agency expressed similar conclusions about the value of increased use of helmets that comply with FMVSS No. 218. The Safety Alert said:
• FMVSS No. 218-compliant helmets are extremely effective. They can prevent injury and death from motorcycle crashes.
• A motorcyclist without a helmet, who is involved in a crash, is three times more likely to sustain brain injuries.
• Wearing a helmet reduces the overall risk of dying in a crash by 37%.
• In addition to preventing fatalities, FMVSS No. 218-compliant helmets reduce the need for ambulance service, hospitalization, intensive care, rehabilitation, and long-term care.
• Wearing a helmet does
Commonly sold with a disclaimer that they are not for highway use, certain helmets worn by motorcycle riders are marketed under a variety of helmet pseudonyms. Manufacturers and sellers' market them under names such as “novelty motorcycle helmets,” “rain bonnets,” “lids,” “brain buckets,” “beanies,” “universal helmets,” “novelty helmets,” or “loophole lids,” and others. Typically, novelty helmets cover a smaller area of the head than compliant helmets and, because they usually have very thin liners, sit closer to a user's head. These helmets lack the strength, size, and ability to absorb energy necessary to protect highway users during a crash. Yet, they are sold to highway users and used in great numbers by motorcyclists.
Novelty helmets often display labels stating that they are not intended for highway use and are not protective gear. Some examples of labels found on novelty helmets NHTSA has examined include:
• WARNING: This is a novelty item and not intended for use as safety equipment.
• This helmet is a NOVELTY item only and was not made for, intended for, nor designated for use as protective headgear under any circumstances. The manufacturer disclaims all responsibility if used in any manner other than a novelty item.
• Warning: This novelty helmet is not D.O.T. certified. It does not meet ANSI, SNELL or any other American or International Safety standards. Do not wear this helmet to operate motorized or non-motorized street legal or off-road vehicles. Doing so could result in death.
Throughout this document, we will refer to these types of helmets as
Although use of a properly certified FMVSS No. 218-compliant motorcycle helmet can significantly reduce the possibility of death or injury in a crash, a significant percentage of motorcyclists either wear novelty helmets or do not wear any helmet at all. In fact, motorcyclists appear to be forsaking the use of compliant helmets in favor of novelty helmets in high numbers in States with universal helmet use laws. (See Table 2.)
In 2011, 20 States and the District of Columbia had helmet use laws requiring all motorcyclists to wear helmets. According to a NHTSA survey, in States where use is required for all motorcyclists, FMVSS No. 218-compliant helmets had an observed use rate of 84%; novelty helmets had an observed use rate of 12%; and no helmets were worn by an estimated 4 percent of motorcyclists. Comparatively, in the States with partial or no helmet use laws, the observed use rate of FMVSS No. 218-compliant helmets was 50%; 5 percent used novelty helmets; and 45 percent did not use a helmet at all.
Motorcycle helmet use rates in 2011 are presented below in tabular form:
These data show that a considerable number of motorcyclists in all States are wearing novelty helmets and that novelty helmet use appears to be remaining steady over time in States with helmet laws.
NHTSA believes that some portion of novelty helmet use results from inadequate or asymmetric information, a major indication of market failure. Reasons for novelty helmet use may vary, but likely include some misjudgment regarding the risk associated with motorcycles and false expectations regarding the protection that would be provided by some novelty helmet designs. In general, problems of inadequate information can be addressed by providing greater information to the public. As noted above, NHTSA has attempted to do this through the dissemination of rider education materials and by publishing the results of an intensive expanded compliance test program. The latter proved to be ineffective and unsustainable while the former has not produced any appreciable results.
In addition to riders' misperceptions, novelty helmets can be lower cost, and some consumers find them to be more comfortable or stylish. When consumers choose to wear novelty helmets, they unnecessarily reduce their safety and burden society with an unnecessary diversion of economic resources. Roughly three quarters of all economic costs from motor vehicle crashes are borne by society at large through taxes that support welfare payment mechanisms, insurance premiums, charities, and unnecessary travel delay. These costs may be even higher for motorcycle riders, who often experience more serious injuries when colliding with larger vehicles and without protection from vehicle structures or seat belts. NHTSA also believes that this regulation is warranted by a compelling public need, specifically, the need for States to properly enforce the laws that they have passed in order to promote public safety. This proposed rulemaking is designed to enable both the identification of novelty helmets and enforcement of these laws. These requirements do not force individuals who do not currently wear complying helmets to wear complying helmets. Rather, by making it easier for law enforcement officials to enforce helmet laws, they make it more likely that riders will choose to purchase compliant helmets in order to avoid prosecution and fines.
Motorcycle helmets are at least 37% effective in preventing fatalities in motorcycle crashes.
Data also suggest that unhelmeted motorcyclists suffer proportionately more fatal head injuries. A study of death certificate information about 8,539 motorcyclists who were fatally injured in 2000, 2001, and 2002 revealed a direct correlation between head injury and helmet use. While about 35 percent of the helmeted motorcyclists who died had a head injury, about 51 percent of the unhelmeted motorcyclists who died had a head injury. This data was based on the National Center for Health Statistics (NCHS) Multiple Cause of Death (MCoD) data set that is linked to NHTSA's FARS. The data set includes data on all recorded fatalities that occurred in the United States during the study period, excluding the 825 fatally injured motorcyclists whose death certification information was unavailable.
Novelty helmets do not provide protection comparable to that provided by an FMVSS No. 218-compliant helmet. When NHTSA tested novelty helmets using the protocols described in FMVSS No. 218, the agency found that they failed all or almost all of the safety performance requirements in the standard.
Novelty helmets have been demonstrated to be unsafe in laboratory tests and in studies of real world motorcycle crashes. A study of motorcycle operators injured during a motor vehicle crash and subsequently transported to the R. Adams Cowley Shock Trauma Center (STC) in Baltimore, MD was conducted between January 2007 and May 2008.
Data for these patients were obtained from the trauma registry, hospital discharge records, autopsy reports, and police crash reports, and were coded using the Abbreviated Injury Scale
A comparison of head injury and helmet type revealed that 56 percent (28/50) of those wearing a novelty helmet received a head injury (AIS 1-6) as compared to 19 percent (37/194) of those wearing a certified helmet. The breakdown of the severity as measured by the Head MAIS of motorcycle operators who sustained a head injury is summarized below in Table 3.
Table 3 shows the safety benefit of using FMVSS No. 218-certified helmets by the fewer number of head injuries at the levels MAIS 1 through 4 in crashes that were at least as severe, if not more severe, than crashes involving novelty helmets.
Novelty helmets present particular challenges to State and local government authorities seeking to enforce helmet use laws. These laws often require that riders use helmets that meet the requirements of FMVSS No. 218.
The certification label required by FMVSS No. 218 is, of course, intended to serve as evidence that a helmet is certified by its manufacturer to FMVSS No. 218. Unfortunately, counterfeit certification labels are widely available. While we expect the recent final rule revising the certification label requirements
Given the availability of false certification labels, law enforcement officials attempting to establish that a novelty helmet user has violated a State helmet use law must present evidence in a hearing that establishes, in the face of a false certification label, that a particular helmet does not meet FMVSS No. 218. This can be a difficult burden. Over the years that novelty helmets have been in use, NHTSA has been contacted many times by police officers and other state enforcement officials that have lost enforcement cases or complained about the costs due to the difficulty with demonstrating that a helmet does not meet the requirements of FMVSS No. 218.
FMVSS No. 218 was intended to establish minimum performance criteria for helmets. Although compliance with some of the requirements of FMVSS No. 218 may be ascertained by visual examination of a helmet, establishing whether a particular helmet meets the performance requirements of the standard requires specific laboratory tests under tightly controlled conditions. It is impractical for State or local law enforcement officials to perform such testing in individual
NHTSA believes that helmet laws save lives and reduce injuries. The use of novelty helmets frustrates full achievement of those goals. Effective enforcement of helmet laws therefore requires that State and local governments have the means to successfully prosecute violations, including cases in which riders are using novelty helmets to create the false impression that they are complying with laws that require FMVSS No. 218-compliant helmets.
In the past, NHTSA has been contacted by North Carolina, Nevada, New York, and other States seeking objective, measurable criteria that could be used to enforce State helmet laws. The best available information NHTSA could provide them was a brochure available online titled
The purpose of FMVSS No. 218 is to reduce fatalities and injuries to motorcyclists resulting from head impacts. FMVSS No. 218 applies to all helmets designed for use by motorcyclists and other motor vehicle users. Helmets complying with this standard have been demonstrated to be a significant factor in the reduction of critical and fatal injuries involving motorcyclists in motorcycle crashes.
FMVSS No. 218 is primarily a performance standard, not a design standard. It requires certain physical attributes such as: a minimum coverage area, the presence of a chin strap, the location and content of the certification and other labels, the specification of the maximum size of projections, a minimum range of peripheral vision and the requirement that a helmet shell have a continuous contour. However, FMVSS No. 218 does not direct that a helmet have a particular configuration or design.
The first of the three principal performance requirements in FMVSS No. 218 is that a motorcycle helmet must exhibit a minimum level of energy absorbency upon impact with a fixed, hard object. Compliance is determined by conducting a series of drop tests at four different sites onto two anvils. The impact attenuation requirement limits the acceleration levels of the headform and is quantified in units of
The second performance requirement is a penetration test, in which a metal striker is dropped 118.1 inches (3 meters) in a guided free fall onto a stationary helmet mounted on a headform. To meet the performance requirement, the striker may not contact the surface of the headform.
The third performance requirement of FMVSS No. 218 is the retention system test. It requires that the retention system, chin strap, or any component of the retention system be able to withstand a quasi-static load. To meet the performance requirement, the helmet's retention system may not break while the loads are being applied and the adjustable portion of the retention system may not move more than 1 inch (2.5 centimeters) during the test.
The test procedures in FMVSS No. 218 specify the manner in which testing will be conducted by any laboratory under contract with NHTSA to test helmets. Additional details on how the tests are to be conducted are contained in the NHTSA Laboratory Test Procedure for FMVSS No. 218 Motorcycle Helmets.
NHTSA issued a final rule amending FMVSS No. 218 on May 13, 2011.
Among other things, the final rule requires the certification label to bear the manufacturer's name and helmet model, as well as the statement “FMVSS No. 218 CERTIFIED.” The final rule also clarified and simplified other labeling requirements, such as permitting the certification label to be located on the helmet exterior between 1 and 3 inches (2.5 to 7.6 cm) from the lower rear edge of the helmet and requiring the size to be labeled in a numerical format.
In addition to these labeling changes, the final rule clarified the test procedures for the retention system and impact attenuation tests, added tolerances to several parts of the standard, amended the time required to condition helmets, and updated a reference and figure numbers.
The final rule stated that the amendments made to FMVSS No. 218 were issued for two purposes. One was to modify tolerances, test procedures, and similar requirements impacting compliance testing. The second was to address the increased use of novelty helmets and the relative ease of applying false certification labels to novelty helmets.
The final rule
In order to make the production and use of fraudulent certification labels more difficult the final rule added a number of new requirements for certification labels. Instead of the simple three letter symbol “DOT,” the amended label requirements state that the symbol “DOT” be accompanied by the word “CERTIFIED” as well as the phrase “FMVSS No. 218.” To restrict the use of a “one size fits all” certification label, the final rule required that the helmet manufacturer's name and/or brand and the precise model designation of the helmet also appear on the certification label.
While the final rule will make it easier for State and local law enforcement officials to enforce State laws requiring the use of FMVSS No. 218-compliant helmets, the agency anticipates that, based on the improved labeling alone, only 5 to 10 percent of motorcyclists using novelty helmets in States with universal helmet use laws will switch to using compliant helmets. Therefore, the agency acknowledged that more is needed to be done to further reduce novelty helmet use by motorcyclists. Citing comments by the Governors Highway Safety Association that novelty helmet use had become a means of expressing displeasure with helmet use laws and evading the operation of such laws, NHTSA indicated that it was assessing other actions that should be taken to address the marketing and selling of novelty helmets to motorcyclists for highway use.
The agency noted the duplicity inherent in marketing or selling a novelty version of motor vehicle equipment. For example, the final rule observed that manufacturers of seat belts complying with FMVSS No. 209, “Seat belt assemblies,” do not also produce novelty versions of the same type of equipment used in motor vehicles, that they declare, explicitly or implicitly, are not intended to provide protection and therefore are not motor vehicle equipment subject to the FMVSSs. The final rule further stated that it was difficult to imagine any manufacturer, importer or seller of seat belts arguing that their seat belts are not motor vehicle equipment and stating, as novelty helmet manufacturers do, that their novelty products are not intended for highway use and not designed to provide protection in a crash. As explained in the final rule, the notion that an item of safety equipment can be transformed into something other than what it is by virtue of a disclaimer is absurd. This, in the agency's view, would be aptly demonstrated by the disclaimer that might accompany the sale of a novelty seat belt:
“Novelty seat belts are intended for display. They are not intended to be used in motor vehicles and are not designed to provide protection in a crash. Their use in a crash may result in serious injury. Use this seat belt at your own risk.”
Furthermore, the agency explained that “In some cases, the use of these look-alike labels has enabled motorcyclists either to assert successfully in court that he or she believed in good faith that the helmet he or she was using had been certified to the federal standard and/or to put State authorities to the time and expense of conducting tests to prove that the helmet is noncompliant.” Further, sellers and distributors of these labels, which bear the letters “DOT,” attempt to avoid any responsibility for their sale and use. They assert that the labels are not counterfeit or misleading look-alike “certification” labels, but merely labels that coincidentally resemble legitimate “DOT” certification labels and whose letters stand for “Doing Our Thing,” not “Department of Transportation.” The agency notes its understanding that these look-alike labels appeared only after the implementation of FMVSS No. 218. As a result, application of these labels to noncompliant helmets enables motorcyclists to avoid conviction and penalties in situations in which State and local helmet laws require the use of a certified FMVSS No. 218-compliant motorcycle helmet.
In NHTSA's judgment, the mere presence of a “DOT” label on a helmet that otherwise lacks the construction and appearance of a FMVSS No. 218-compliant helmet cannot reasonably be thought to be a reliable indication that the helmet is a compliant helmet. The plausibility of such a false indicator of compliance is negated by a lack of critical visible physical attributes such as an impact absorbing liner of adequate thickness and composition to protect a user in the event of a crash, as well as the presence of interior labeling required by FMVSS No. 218. The presence of a label on such a helmet is instead actually indicative that the label is a misleading look-alike label applied by a helmet seller or user, not by its manufacturer. This has led the agency to propose criteria to assist the public and law enforcement in identifying novelty helmets. This proposal is discussed further in the section of this document titled
To help ensure that helmets are properly certified by their manufacturers, NHTSA conducts a compliance test program that tests approximately 40 different makes and models of helmets each year. The helmets are purchased by NHTSA through normal retail channels. Because FMVSS No. 218 requires that helmets be tested under four different environmental conditions, NHTSA purchases four samples of each helmet model. The helmets are then tested by test laboratories under contract with the agency. Currently, testing of a particular model of helmet costs approximately $2,000.00.
The appearance of novelty helmets in the marketplace and their increasing use creates a number of challenges for NHTSA that are relevant to the agency's test program. First, although novelty helmets are typically not manufactured or sold with certification labels attesting that they comply with Standard No. 218, novelty helmets with certification labels have appeared in the marketplace. Second, as stated elsewhere in this document, the agency is proposing to add a new definition of
Responding to consumer concerns and inquiries from law enforcement about the difficulties in distinguishing compliant helmets from non-compliant helmets, NHTSA embarked on an expanded test program in 1994 with the goal of providing more comprehensive coverage of the existing helmet market. This expanded test program illustrated the difficulties inherent in attempting to perform full FMVSS No. 218 testing on a wide range of helmets. Resource constraints prevented the agency from testing all of the helmets in the program under the four environmental conditions specified in the standard. The agency also found it difficult to procure all helmets in the marketplace and was criticized for failing to do so. Finally, the poor performance of novelty helmets in impact testing proved not just to be an ample demonstration of the threat they pose to users, but also had serious consequences for the test equipment used to assess performance. Due to concerns about damaging expensive test equipment in novelty helmet impact testing, laboratories contracting with NHTSA became reluctant to test novelty helmets or refused to do so.
Congress passed the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act) with the express purpose of reducing motor vehicle accidents and injuries.
“Motor vehicle equipment” was defined in the Safety Act as “any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system part, or component or as any accessory or addition to the motor vehicle.” 15 U.S.C. 1391(4) (1988 ed.) Given that satisfaction of that definition was predicated on the existence of a motor vehicle which would be improved or enhanced by the equipment at issue, items that were not incorporated into vehicles or were accessories for a vehicle were not motor vehicle equipment. Therefore, when enacted in 1966, the Safety Act's definition of “motor vehicle equipment” did not include protective equipment such as motorcycle helmets.
In 1970, Congress amended the Safety Act of 1966 to substantially expand the definition of “motor vehicle equipment” to include motorcycle helmets and other protective equipment that did not meet the originally enacted definition of the term. The existing definition of “motor vehicle equipment,” was expanded beyond motor vehicle components to include “any device, article or apparel not a system, part, or component of a motor vehicle (other than medicines, or eyeglasses prescribed by a physician or other duly licensed practitioner) which is manufactured, sold, delivered, offered or intended for use exclusively to safeguard motor vehicles, drivers, passengers, and other highway users from the risk of accident, injury or death.”
In 1994, the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381
This definition of “motor vehicle equipment” was again amended by Congress in 2012. Specifically, MAP-21 amended this phrase to specifically state that motorcycle helmets are motor vehicle equipment. The definition now directs that motor vehicle equipment includes “. . . any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner.” The MAP-21 amendment further refined the definition by replacing the term “intended for use only” with the term “apparent purpose.” As enacted, this definition defines “motor vehicle equipment” as “any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner, that . . . is not a system, part, or component of a motor vehicle; and . . . is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding motor vehicles and highway users against risk of accident, injury, or death.”
The 1970 expansion of the definition of “motor vehicle equipment” and the MAP-21 amendments confirm that Congress provided NHTSA with jurisdiction over motorcycle helmets used on public highways. By specifically including “motorcycle helmets” and replacing the phrase “intended to be used only to safeguard” highways users with the phrase “apparent purpose of safeguarding” highway users, the 2012 amendment further clarifies the scope of what constitutes “motor vehicle equipment” under the Safety Act. This modification indicates that Congress did not want the definition of motor vehicle equipment to turn on the question of “intent” to safeguard users, which could be either the subjective intent of a manufacturer or an objective assessment of intent based on the circumstances of marketing and sale. By choosing to employ the words “apparent purpose to safeguard” highway users, Congress indicated that decisions about what constitutes motor vehicle safety equipment are to be governed by an objective examination of the facts and circumstances of the marketing, sale, use and physical characteristics of the item at hand. More importantly, the specific inclusion of “motorcycle helmet” as the only example of motor vehicle equipment indicates that Congress intended to include every helmet that can reasonably be considered such a helmet. Nor did Congress want the word “only” to insulate from the Act's reach any type of equipment that arguably has more than one possible use. The specific inclusion of “motorcycle helmet” in the Act's definition clearly signals, along with these other changes, that Congress intended to include all items with that apparent purpose.
The “apparent purpose” test employed by Congress indicates that
Furthermore, a manufacturer's addition of a label stating that a helmet is “not for highway use” would not be sufficient to overcome objective evidence regarding its apparent purpose (use while on the highway) and take a novelty helmet out of the ambit of “motor vehicle equipment.” By amending the definition of motor vehicle equipment to delete the words “intended” and “only” and to focus on the “apparent purpose” of safeguarding users, Congress indicated that the definition of motor vehicle equipment should not be controlled by subjective statements in which a manufacturer denies any intention of protecting wearers of the product from injury. NHTSA sees no reason to conclude that Congress would give any greater weight to similar subjective expressions of intent regarding highway use. Instead, we believe that Congress meant for the question of whether a product is manufactured or sold for highway use to be resolved by an objective examination of the facts.
If a helmet is manufactured by a company that produces safety equipment for drag racers, the helmet is promoted for racing use and is sold by entities that serve racers, the objective facts and circumstances indicate that such a helmet is not manufactured, sold, delivered, or offered to be sold for highway use and not subject to NHTSA's jurisdiction. However, if a helmet is promoted and advertised for purchase by highway users, is sold in outlets catering to highway users and is worn by highway users, an objective examination of these facts compels the conclusion that the helmet was sold for highway use regardless of any manufacturer disclaimers to the contrary. This is a sensible position and one that the agency concludes is wholly consistent with Congressional intent and the text of the Safety Act as modified by MAP-21.
The agency is proposing to add a definition of “motorcycle helmet” to section S4 of FMVSS No. 218 to effectuate the interpretation of the statutory definition of motor vehicle equipment described in Section III of this document and help ensure that helmets being used by motorcyclists on highways meet the minimum performance standards set forth in FMVSS No. 218.
Neither the Safety Act nor NHTSA's regulations currently provide a precise definition of what constitutes a motorcycle helmet. FMVSS No. 218 currently states that regulated helmets are those helmets designed for highway use. Section S1 of FMVSS No. 218 states that the standard establishes minimum performance requirements for helmets designed for use by motorcyclists and other motor vehicle users. Section S3, stating what the standard applies to, sets forth that the standard applies to all helmets designed for use by motorcyclists and other motor vehicle users.
The term “motorcyclist” is not defined by the Safety Act. Under the term's ordinary meaning, a “motorcyclist” is an operator or passenger of a motorcycle.
Although NHTSA believes, as explained more fully in the section of this document titled
Although the agency remains concerned that manufacturers may tailor their efforts to avoid NHTSA's enforcement efforts, we believe that focusing on the marketing, promotion and sale of helmets provides an important and legitimate means of distinguishing motorcycle helmets from other protective helmets. Marketing, promotion and sales materials are important objective indicia of the intended use of a product and this definition employs an eminently practical set of tests by examining who is selling the product and the use it is being sold for. If a helmet is sold by
NHTSA believes that including helmets worn by motorcyclists using public highways is supported by the expanded definition of motor vehicle equipment adopted by Congress in 1970 and the recent MAP-21 amendments. As we interpret that definition, the manner of actual use is compelling objective evidence of the intended use of a product regardless of any disclaimers issued by a manufacturer or seller. Nonetheless, the agency has tentatively decided not to propose incorporating this criterion in the definition of motorcycle helmet. This tentative determination is based on the current lack of data regarding which helmets are actually being used on public highways. As stated elsewhere in this document, if NHTSA were to adopt an actual use component in the definition of motorcycle helmet, the agency would not consider incidental use as evidence that a particular type of helmet is a motorcycle helmet. Instead, only those helmets being used on-road by a sufficient number of motorcyclists would be considered as evidence that the helmet being worn is intended for highway use.
Although NHTSA has tentatively decided not to include a use-based criterion in the definition of “motorcycle helmet” the agency may include such a provision in the definition contained in the final rule. The agency therefore requests comments on including a provision in the final rule that helmets used on the highways are motorcycle helmets and motor vehicle equipment under the Safety Act.
NHTSA's proposed definition of “motorcycle helmet” establishes that “hard shell headgear” meeting certain conditions are motorcycle helmets. As employed in the definition, hard shell headgear refers to headgear that retains its shape when removed from the user's head, whether or not covered by a decorative surface such as leather. “Hard shell” distinguishes motorcycle helmets from other non-hard shelled headgear such as soft caps and bandannas that are also used by motorcyclists on road. If an item of headgear meets this threshold requirement, additional criteria are employed to determine if the item is a motorcycle helmet.
The criteria relate to the manufacture, importation, sale, and use of the headgear in question. First, a helmet is a motorcycle helmet under subsection (1)(A) if it is manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States, for use on public streets, roads, and highways with the apparent purpose of safeguarding highway users against risk of accident, injury, or death. The apparent purpose of a product stems from its essential physical characteristics such as the size, shape, design and general appearance of the helmet. For example, a small bicycle with small diameter wheels and a correspondingly small frame would have the apparent purpose of being used by a child for short distances on sidewalks and driveways. Conversely, a bicycle with large wheels and a large frame would have the apparent purpose of being used by an adult on roads and highways. In the case of helmets, an unperforated hard shell helmet with a chin strap or retention system would have the apparent purpose of being a protective motorcycle helmet. If that helmet also has snaps for attaching a visor or face shield, the apparent purpose becomes even clearer. Further, if such a helmet is similar to helmets certified by their manufacturers as meeting the requirements of FMVSS No. 218, the helmet would have the apparent purpose of being a protective helmet.
Under subsection (1)(B) a helmet is a motorcycle helmet if it is manufactured, sold, introduced into interstate commerce, or imported by entities also manufacturing, offering, selling or importing certified helmets or other motor vehicle equipment and apparel for motorcycles or motorcyclists. Under this standard, if a helmet is manufactured, imported, sold, offered for sale or introduced into interstate commerce, or imported into the United States, by entities that undertake the same activities for other products, services or goods used by on-road motorcyclists, the apparent purpose of the helmet is on-road use and the helmet is a motorcycle helmet. Proposed subsection (1)(C) states that a helmet is a motorcycle helmet if it is described or depicted as a motorcycle helmet in packaging, display, promotional information or advertising. This criterion is met if the helmet is described or depicted as a motorcycle helmet in packaging, display, promotional materials or advertising. Such materials may include obvious characteristics such as the word “motorcycle” in a description of the helmet or more subtle factors such as a depiction of a user who is also wearing goggles, sunglasses, or other protective clothing or gear normally worn by motorcyclists.
Subsection (1)(D) states that helmets presented for importation under applicable designation(s) for motorcycle helmets in the Harmonized Tariff Schedule of the United States would also be deemed to be on-road motorcycle helmets. This fourth criterion relates to the manner in which imported goods enter the United States and would specify that any helmet imported into the United States under the designations reserved for motorcycle helmets in the Harmonized Tariff Schedule of the United States (HTS) is intended for highway use. The HTS, which replaced former US Tariff Schedules, was enacted by Congress and made effective on January 1, 1989. The HTS establishes a hierarchical structure for describing all imported goods for duty, quota, and statistical purposes. The United States International Trade Commission (USITC) maintains and publishes the HTS, which is enforced and interpreted by the Bureau of Customs and Border Protection of the Department of Homeland Security.
NHTSA recognizes that some helmet manufacturers, importers and sellers produce, sell or import a variety of helmets for various purposes and uses. Therefore, that retailer might sell motorcycle helmets, ski helmets, bicycle helmets, mountaineering helmets and other protective headgear for off-highway uses. A manufacturer or importer may produce helmets certified as meeting Standard No. 218 but may also produce helmets for racing or other motorsports that are not certified to that standard. Unlike “novelty helmets,”
Our proposed definition would exclude helmets designed and manufactured to, and labeled in accordance with other recognized helmet standards. For example, football helmets marked as complying with the National Operating Committee on Standards for Athletic Equipment (NOCSAE) or ASTM International ASTM F717-10 football helmet standards meet the exception clause included in the definition. Similarly, hockey helmets marked as complying with ASTM International ASTM F1045-07 or Hockey Equipment Certification Council (HECC) hockey helmet standards would not be motorcycle helmets.
Subsection (1)(A) couches the acts of manufacturing, selling, offering or introducing into interstate commerce, or importing into the United States, as being gauged by the “apparent purpose” of safeguarding highway users from death or injury. Deriving the apparent purpose involves looking to the essential physical characteristics of the item involved. Moreover, even though a manufacturer or seller of a novelty helmet may declare that the helmet is not “DOT Certified” or is “Not a Safety Device,” these products are sufficiently similar to helmets that actually do provide protection that both users and reasonable observers might conclude that they provide some degree of protection against impact. Subsections B and C also follow the language used by Congress in the MAP-21 and 1970 amendments. In this instance the actions of manufacturing, offering and selling are framed by the manner in which products are sold. The surrounding circumstances used to assess the apparent purpose of the product are found in the acts of making or selling other goods and services intended for use by motorcyclists or in promoting the helmet. If one sells a helmet in venues offering other products that motorcyclists use on public highways, it is objectively reasonable to conclude that the helmet at issue is also intended for this use. It is also objectively reasonable to conclude that a product depicted as a motorcycle helmet in promotional materials or packaging is also meant by its maker to be used by ordinary motorcyclists. Subsection D follows the logical premise that a helmet declared to be a motorcycle helmet by an importer is intended by that importer to be used by motorcyclists.
The proposed definition therefore characterizes motorcycle helmets as hard shell headgear meeting any one of four conditions. The first condition is that it is manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States, for use on public streets, roads, and highways with the apparent purpose of safeguarding highway users against risk of accident, injury, or death. The second condition is that it is manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States by entities that also manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States either motorcycles, helmets certified to FMVSS No. 218, or other motor vehicle equipment and apparel for motorcycles or motorcyclists. The third condition is that it is described or depicted as a motorcycle helmet in packaging, display, promotional information or advertising. The fourth and final condition is that it is imported into the United States under the applicable designation(s) for motorcycle helmets in the Harmonized Tariff Schedule of the United States. However, if a helmet that meets any of conditions two, three, or four is labeled and marked in accordance with a non-motorcycle helmet standard issued or adopted by any one of the organizations identified as manufacturing other types of safety helmets and listed in the proposed definition, it would not be considered to be a motorcycle helmet.
For consistency, NHTSA also proposes to revise the language in the scope and application sections of FMVSS No. 218 to refer to motorcycle helmets.
The agency requests comments on the proposed definition as well as the alternative definitions discussed previously. Depending on the public comments, elements of the different definitions could be combined into the definition adopted in the final rule. In addition, the agency request comment on additional government entities or industry standards that should be included in Paragraph (2) of the definition.
As NHTSA has observed elsewhere in this document, the existing performance requirements of FMVSS No. 218 establish test procedures specifying that compliance with the standard be evaluated through the use of laboratory tests requiring that four samples of each helmet model be tested under different specific environmental conditions. Although compliance with some of the requirements of the standard may be determined by simple visual examination—
The interpretation issued in this document, as well the proposed amended definition of motorcycle helmet, would both require significant expansion of NHTSA's compliance test program.
Such an expansion would, of course, require significant additional agency expenditures if the agency continues to rely on the existing performance requirements of FMVSS No. 218. In addition, novelty helmets perform very poorly in compliance testing. This performance is substandard to the point that performing impact attenuation testing on novelty helmets poses a threat to accelerometers and other devices incorporated into test devices. The risk of damage to this equipment has caused NHTSA-contracted test laboratories to be reluctant to perform impact attenuation testing on novelty helmets or to refuse to test them altogether. The agency also notes that because manufacturing and/or importing novelty helmets requires less financial resources than manufacturing conventional FMVSS No. 218 compliant helmets, there appear to be many entities manufacturing, importing and selling novelty helmets. Taken together, the foregoing factors indicate that a full test program aimed at examining large numbers of both novelty and
The agency is therefore proposing modifications to FMVSS No. 218 to lessen NHTSA's test burden and allow a more comprehensive examination of helmets being sold and marketed to highway users. The proposed amendments would incorporate certain physical criteria into FMVSS No. 218 in order to facilitate simplified test procedures. The physical characteristics being proposed are, in NHTSA's view, excellent indicators that a helmet will be unable to comply with the impact attenuation and penetration tests already incorporated in the standard.
With the issuance of the NPRM, the agency will simultaneously be contacting States with universal helmet laws for feedback on the proposals contained herein. Specifically, the agency requests the following feedback:
• Does your State's helmet law require use of a DOT-certified helmet?
• Has your State had difficulty with prosecuting cases against users of novelty helmets in the past and, if so, why?
• Has your State had difficulty with prosecuting cases against manufacturers of novelty helmets in the past and, if so, why?
• Have law enforcement officers in your state had difficulty distinguishing novelty helmets from certified helmets?
• Will these criteria help your state to distinguish novelty helmets from certified helmets?
• Will the tools described in the regulatory text be useful to you?
• Will you use the tools in the field or during court hearings?
• Do you believe this rule will encourage greater use of DOT-certified helmets in your state?
• Are there other actions that NHTSA can take to assist the States in this area?
To the extent that advances in technology and materials may permit the development of helmets meeting all the requirements of Standard No. 218 excluding the proposed preliminary screening requirements, we are also proposing to establish an alternative compliance process encompassing a petition procedure allowing helmet manufacturers an opportunity to establish that a specific helmet design qualifies for further testing. In so doing, NHTSA acknowledges that such a petition process appears to present an increased burden to both manufacturers and the agency. The agency believes, however, that the likelihood that the proposed petition process will be frequently employed is small. The proposed preliminary screening requirements are quite conservative. We believe that it is extremely unlikely that any helmet constructed using presently known techniques and materials can meet the performance requirements of Standard No. 218 without also complying with the proposed preliminary screening requirements.
The alternative compliance process being proposed allows manufacturers to petition the agency and demonstrate that new technologies allow their helmets to comply with the requirements of S5.2-S5.7 (as renumbered) of the Standard even if they do not meet the proposed preliminary screening requirements in S5.1. They do this by providing information specified in the proposed Appendix including the evidence on which they base their belief that the helmet complies with all requirements of S5.2-S5.7. The Agency reviews their petition and has an option to conduct validation testing. Manufacturers who have all required information on file and whose helmets are determined by the agency to be capable of meeting Standard No. 218 S5.2-S5.7 and yet do not meet the preliminary screening criteria of S5.1, will be identified in an Appendix to the Standard and this information will be made available on the NHTSA Web site.
Adoption of these proposed requirements will also have ancillary benefits for State officials charged with enforcing helmet laws requiring the use of FMVSS No. 218 compliant helmets. Many States with helmet use laws have adopted a requirement that riders subject to the law must use a helmet that complies with FMVSS No. 218. Although such a requirement advances the laudable goal of ensuring that motorcyclists use helmets meeting minimum performance requirements, it creates an additional burden for State and local authorities who must enforce these helmet laws. In many jurisdictions, establishing a violation requires the State to prove either that a rider was not wearing any helmet or that the helmet worn by the rider did not meet the performance requirements incorporated in the State helmet law. Given the popularity of novelty helmets and the widespread availability of “DOT” stickers and other facsimiles of actual manufacturer certifications, successful enforcement of such a State helmet law requires proof that a particular helmet, even when marked with the symbol “DOT,” does not meet FMVSS No. 218.
These helmets are typically not certified by the manufacturer as meeting FMVSS No. 218 and are not designed or manufactured to comply with FMVSS No. 218. Nonetheless, the availability of misleading look-alike or “counterfeit” certification labels provides users with the opportunity to give the helmet the appearance of having been properly certified. In jurisdictions where motorcycle helmet laws require the use of an FMVSS No. 218-compliant helmet, riders using novelty helmets are violating the law. However, proving the violation requires establishing that a helmet does not comply with FMVSS No. 218. This can be especially difficult when a helmet has a fraudulent certification label. Under the current regulations, the only recourse enforcement officials may have is to establish that a helmet does not meet the performance requirements of FMVSS No. 218. If NHTSA has not tested the helmet at issue, State and local officials attempting to establish that a helmet does not comply with FMVSS No. 218 are often asked to present their own data. Although manufacturers of properly certified helmets routinely perform compliance testing before releasing a product for sale, such testing is obviously not performed by novelty helmet manufacturers claiming their products are not for highway use. If agency or manufacturer test data are not available, it is impractical to expect State and local enforcement officials to commission or perform such tests to prosecute individual cases.
To reduce NHTSA's test burdens, prevent or reduce the entry of novelty helmets into the United States, and assist State and local governments with the means to effectively enforce their helmet laws, NHTSA undertook an examination of the physical characteristics of helmets certified to FMVSS No. 218 and novelty helmets to determine if a set of simple criteria could be developed to differentiate between the two groups of helmets. In doing so, the agency's goal was to develop a test, or set of tests, that would employ commonly available tools or measurement devices in a manner that would not impair or compromise the performance of the helmet being examined.
In an effort to reduce the agency's test burden and provide a means for State officials and consumers to differentiate compliant and non-compliant helmets, NHTSA examined the possibility of comparing the weight and/or dimensions of the two classes of helmets and positing a test based on weight or size. However, because novelty helmets are produced in a wide variety of sizes and are not necessarily labeled as being a particular size, comparing the weight or exterior dimensions of large novelty helmets to
Next, NHTSA examined the possibility of comparing liners of the two classes of helmets. The importance of an energy absorbing liner in preventing and reducing brain injuries was first established in the United States shortly after World War II by research directed toward developing effective protective helmets for military pilots.
NHTSA therefore examined the thickness of the liners, liners and shells, and compression characteristics of a sample of motorcycle helmets commercially available in 2009 and 2010. Two critical physical differences between novelty and FMVSS No. 218 certified helmets were revealed: The thickness and compression characteristics of the padding and/or energy absorbing material inside the shell of the helmet. Novelty helmets are typically manufactured with a relatively thin comfort liner between the wearer's head and the exterior shell. These comfort liners consist of a layer of cloth immediately next to the wearer's head and possibly a thin layer of foam between the cloth and the inside of the helmet shell.
NHTSA attempted to quantify the differences in the thickness and response of helmet liner materials to compression in order to determine if threshold values for thickness and compression could be identified to distinguish certified from novelty helmets. Measurements were taken near the apex of 30 helmets obtained from the market place. The apex of the helmet is the highest point when a helmet is oriented so the brow opening is parallel to the ground. Inner liner thickness was measured by inserting a push pin into the liner, marking its depth along the shaft of the pin, withdrawing the pin, and measuring the depth of penetration to the shell. The combined thickness of the shell and liner was measured using digital calipers. The combined thickness of the shell and liners were measured before and after being compressed with a specified force. In order to measure the thickness when the comfort liner was compressed, a 5 pound-force (lbf) (22 Newton (N)) was applied using a dial force gauge. This force was selected because it is sufficient to distinguish EPS foam from foam that does not have sufficient compressive resistance to attenuate energy during an impact, not damage the EPS foam, and can readily be achieved using a thumb-fingertip grip should a gauge not be available.
The tools used to measure helmet characteristics are described in Table 4. These tools were selected because they are commercially available, relatively inexpensive, and are easy to use. While these tools will not measure the criteria with high precision, we believe they are minimally sufficient to perform the preliminary screening tests proposed in the standard. Other tools may be useful as well. Based on useful life, the tool kit in 2012 dollars is estimated to be $81.43 per kit per year.
NHTSA examined each helmet and took multiple measurements in the vicinity of the apex. Two measurements are being reported: Thickness at the low end of the range (
In comparison, the liners of helmets certified by manufacturers as complying with FMVSS No. 218 are thicker and are composed of materials with different physical properties. Certified helmets employ an energy absorbing non-resilient material in the helmet liner. Typically, this non-resilient liner, which fits between the cloth comfort liner and the inside of the helmet shell, is made from a semi-rigid material such as EPS or polyurethane foam
NHTSA is not alone in its efforts to characterize helmet liners. A study of helmet design and effectiveness published in the 1990s concluded that a helmet must have a combined shell and liner minimum thickness of 1.5 inch (40 mm) in order to meet the impact attenuation requirements of the then-current Snell M90 standard.
Based on the examination of these certified and novelty helmets, the threshold thickness value of 0.75 inch (19 mm), measured within 4-inches of the apex, would allow for variability in helmet design, test equipment usage, and materials, while serving as an objective thickness criterion to distinguish certified from novelty helmets. Accordingly, NHTSA proposes to amend FMVSS No. 218 to incorporate a series of simple tests that would evaluate the physical characteristics required to meet current standards of helmet performance. These tests would serve to establish whether further testing is needed to fully and fairly determine if a helmet meets the existing performance requirements of FMVSS No. 218. Helmets not meeting the proposed requirements would be deemed to be non-compliant.
The aforementioned criteria are of little use to NHTSA or to State and local law enforcement officials if tools and techniques for ascertaining helmet inner liner thickness and composition are not readily available or are only available at significant cost. Similarly, the procedures employed in examining helmets should not be complex. Accordingly, this preamble discusses tests that could be performed on easily accessible areas of a helmet using simple tools and provides a guideline that could be adapted to reference cards carried by law enforcement personnel conducting traffic stops.
Inner liner thickness could be measured in a number of ways. One method could be to penetrate the helmet liner with a pin, needle, or similarly small diameter wire probe until the inside of the helmet shell is reached and measuring the depth of the penetration. NHTSA is confident that measurements of inner liner thickness taken in this fashion will not impair helmet performance and that a single penetration, or a limited number of similar penetrations, of the energy attenuating foam liners employed in compliant motorcycle helmets by a pin, needle or other small diameter probe would not degrade a helmet's ability to protect a user in a crash. Because we recognize that some organizations may be reluctant to conduct such a test, we request comment on this method of measuring inner liner thickness, its potential impact on helmet performance and any alternative means that may be employed using simple tools to readily and accurately find liner depth.
NHTSA is also proposing a measure of the combined thickness of the outer shell and inner liner as another means of identifying helmets that do not comply with FMVSS No. 218. As discussed above, the combined shell and inner liner thickness are good predictors of how well a helmet will perform in compliance testing. Because the combination of the outer shell and the impact absorbing inner liner are critical determinants of a helmets' ability to meet the performance requirements of FMVSS No. 218, NHTSA proposes that any helmet whose outer shell and liner are less than 25 mm (1 inch) thick would not comply with FMVSS No. 218. This measurement could be taken using a large caliper. Another method would be to place a helmet on a headform or stand so that the inner liner is seated against that stand, measure the combined height of the helmet and the stand, and then remove the helmet and measure the height of the stand alone. The difference between the two measurements would yield the thickness of the combined shell and liner.
Measuring inner liner thickness, or combined shell and inner liner thickness, represents only one component of a test for identifying helmets that do not comply with FMVSS No. 218. NHTSA proposes a second component of this test that involves examining the resistance of helmet liners to crush when low forces are applied. This technique is useful because, as previously explained, novelty helmets have thin, non-substantial inner liners that are too soft to absorb energy if they have any liner at all. NHTSA is proposing guidance stating that an inner liner that meets the appropriate thickness requirements but which may be deformed
To reduce the possibility of error caused by variations in helmet designs, NHTSA is proposing that the measurements of inner liner thickness, combined helmet/inner liner thickness and inner liner compression characteristics be conducted in a limited area near the crown or apex of the helmet. Helmets providing the minimum level of impact and penetration resistance required to meet FMVSS No. 218 must have a robust shell and liner in this area. In addition, the test area proposed in this document is intended to be located, measured and marked using simple tools that are readily available at low cost. This is best achieved by focusing at the topmost area of the helmet. Finally, it is not NHTSA's intention to discourage manufacturers from designing helmets with ventilation channels. NHTSA requests feedback about the following issues as they relate to this proposal:
• How will the proposed measurements be affected by the presence of ventilation channels?
• How will the proposed measurements stand up to the effects of wear and aging on certified motorcycle helmets?
• Will compliant motorcycle helmets that are currently manufactured meet the newly proposed performance requirements?
• What emerging motorcycle helmet technologies will be affected if this proposal moves forward?
The proposal specifies that the measurements of inner liner thickness, combined shell and inner liner thickness and inner liner resilience be made within a circular zone having a 4 inch (104 mm) radius centered at the apex of the helmet. We are proposing the term “inner liner” to mean an energy absorbing material that is molded to conform to the inner shape of the helmet's shell and serves to protect
NHTSA's intention is that thickness measurements are made along the shortest line that passes through the helmet to measure the thinnest cross section and avoid artificially inflating the thickness. Therefore, we propose that this measurement be made along a line that is at or near perpendicular to a plane tangent to a point on the outer shell near the apex of the helmet. We are proposing to add to FMVSS No. 218, a figure of an exemplar helmet to demonstrate the general location and meaning of these terms, so the public will know where and how the measurement should be made and a new Table 3 to specify which certification label is required based on the helmet's manufacture date.
NHTSA is also proposing the establishment of an alternative compliance process for manufacturers whose helmets do not meet the aforementioned preliminary screening criteria, to prove that their products are capable of meeting the remaining requirements of Standard No. 218. As noted above, we are proposing this process to ensure that the preliminary screening criteria do not stifle advances in helmet technology and materials. To accomplish this end, the Agency proposes that manufacturers of advanced technology helmets that do not meet the preliminary screening criteria be allowed to petition the agency for a determination that a particular helmet is capable of meeting S5.2-S5.7 (as renumbered) of the Standard.
The proposed requirements for such a petition are straightforward and stated in the proposed regulatory section (Appendix B) of this document. Manufacturers of helmets, including importers of helmets, would be eligible to file a petition provided that such manufacturer or importer has identified itself to NHTSA in compliance with 49 CFR part 566 and, in the case of helmets manufactured outside of the United States, the manufacturer of the helmet has designated a U.S. agent for service of process as required by subpart D of 49 CFR part 551 (49 CFR 551.45
If the petition is complete, NHTSA's review of the petition may, at the agency's discretion, result in subsequent testing of sample helmets. If NHTSA is unable to obtain sample helmets that are the subject of the petition, it will reject the request. If the Agency determines that a particular model helmet that does not comply with the preliminary screening requirements of S5.1 is otherwise capable of meeting Standard No. 218, it will publish this determination in the
The proposed petition process would also allow for termination or modification of a determination if doing so is in the public interest, if additional information indicates that the determination was erroneous or if the petition was granted on the basis of false, fraudulent or misleading information.
If adopted, the petition process proposed here would exist alongside existing provisions that offer similar relief. Manufacturers of motor vehicles and motor vehicle equipment, along with other interested parties, currently have the ability to petition NHTSA to initiate rulemaking to amend a safety standard under 49 CFR part 552. Therefore, a helmet manufacturer that has developed new materials or technologies allowing the use of thinner helmet liners than those currently needed to meet Standard No. 218 could address their inability to meet the proposed preliminary screening requirements through a petition for rulemaking rather than the special petition procedures being proposed in this document. We therefore note that NHTSA may decide that the proposed petition process described above may not be needed and may be deleted from a final rule.
NHTSA solicits comments on the proposed petition process in general and the following specific issues related to this portion of our proposal:
• Are the existing provisions of part 552 adequate to minimize or alleviate the risk that the proposed preliminary screening requirements for helmets would stifle innovation?
• What is the likelihood that new cost effective technologies or materials would allow for helmet liners to meet the performance requirements of Standard No. 218 while not meeting the preliminary screening requirements proposed in this document?
• What means should the Agency employ to ensure that helmet users and state and local law enforcement agencies are adequately informed about determinations made under the proposed petition process?
NHTSA is proposing a lead time of two years from the publication of the final rule for manufacturers to comply with the new requirements. Based on NHTSA's survey of helmets, NHTSA believes that helmets currently sold in the market place will comply with the new screening criteria; however, responsible manufacturers may wish to submit their products to independent laboratories to generate data on which they base their certification. The agency believes that a lead time of two years to be a sufficient and reasonable time to allow the manufacturers the opportunity
To calculate the benefits and costs of this proposed rulemaking, the agency has prepared a Preliminary Regulatory Impact Analysis (PRIA). The results of the PRIA indicate that the proposed rule is cost-effective. The goal of this rule is have motorcyclists wearing novelty helmets switch to FMVSS No. 218-certified helmets (certified helmets). Depending on the degree of effectiveness of the rule, the costs and benefits can vary substantially. The benefits and costs of the proposal depend on how many additional motorcycle riders change from wearing novelty helmets to wearing certified helmets in States that have a Universal Helmet Laws beyond the benefits estimated for the final rule that becomes effective on May 13, 2013.
The benefit of the proposed definition is seen to the extent that it clarifies and supports the other actions in this proposed rule, and the benefits and costs of such will not be estimated independently in this analysis. The preliminary screening requirements will be beneficial to enforcement. The costs and benefits of the proposal are described in detail in the accompanying PRIA.
Behavioral change among motorcycle riders as a result of the rule is difficult to predict. However, the agency believes that this proposal would further improve the ability to enforce helmet laws and that an additional 5 to 10 percent of the novelty helmet users in States that have a Universal Helmet Law would eventually make a switch to avoid being ticketed or fined, and that this is a modest and achievable projection. In addition, the analysis also estimates the maximum potential benefit of the rule which corresponds to a hypothetical scenario of all novelty helmet users in States that have universal helmet laws becoming 218-certified helmet users (the 100-percent scenario). Note that this 100-percent scenario is considered theoretical since some novelty-helmeted motorcyclists would still be expected to circumvent the helmet laws by continuing taking the risk of wearing novelty helmets. Therefore, the estimated costs and benefits for the 100-percent scenario are not used (and not appropriate) for determining the effects of the proposed rule. However, they do indicate the potential savings in social costs that are offered by FMVSS No. 218-compliant helmets and the importance of educating the public to this potential.
The following table lists the discounted injury benefits from lives saved and monetized savings. It excludes benefits from non-fatal injuries prevented and any utility lost by novelty helmet riders who switch to FMVSS 218 compliant helmets. Since any such utility is obtained in violation of State law, its status is uncertain. See “Non-quantified Impacts” section of the PRIA for further discussion. The lower bounds represent the savings for the 7 percent discount rate and the higher bounds represent savings for the 3 percent discount rate. In addition to discount rates, the estimated benefit ranges also reflect two different approaches that were used to derive the benefit target population and the injury risk reduction rates as described in the accompanying PRIA. Furthermore, due to great uncertainty in deriving the estimated portion of non-fatal injuries attributed to the head, the benefits attributed to non-fatal head injuries are not quantified in this analysis.
The regulatory costs of the proposed rule are derived from the incremental cost increase due to purchasing a 218-certified helmet versus a novelty helmet, and the cost of State and local law enforcement acquiring preliminary screening tools.
The incremental cost per replaced novelty helmet is estimated to be $48.92. The estimated costs of the proposed rule are based on 5 percent and 10 percent of consumers in Law States replacing novelty helmets with compliant helmets. The estimated consumer cost ranged from $0.6 million to $1.2 million, where 12,150 to 24,300 novelty helmets would be replaced by compliant helmets. Under the maximum benefit scenario in which 100 percent of novelty helmet users would switch to compliant helmets, the incremental cost to consumers is $11.9 million, where 243,000 novelty helmets would be replaced by compliant helmets.
The cost of the preliminary screening tool kit is estimated to be $81.43 per kit per year,
The total regulatory cost of the proposed rule including the cost of novelty helmet replacement and screening tool kits ranged from $1.2 million to $1.8 million. For achieving the maximum benefit (
The net benefit of the proposed rule is the regulatory cost minus the societal economic savings. The societal economic savings is greater than the regulatory cost for all three scenarios.
Your comments must be written and in English. To ensure that your comments are filed correctly in the docket, please include the docket identification number of this document in your comments. Your comments must not be more than 15 pages long. (49 CFR 553.21) NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
NHTSA will consider all comments received before the close of business on the comment closing date indicated above under
You may read the comments received by the docket at the address given above under
The agency has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is economically significant and was reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has also been determined to be significant under the Department's regulatory policies and procedures. NHTSA has placed in the docket a Preliminary Regulatory Impact Analysis describing the costs and benefits of this rulemaking action and summarized those findings in Section V titled Benefits/Costs.
Pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
NHTSA has considered the effects of this proposed rule under the Regulatory Flexibility Act. Manufacturers not currently producing compliant helmets that switch to manufacturing compliant helmets will recapture the increased costs associated with manufacturing such compliant helmets as reflected in this analysis. Small entities selling motorcycle equipment and accessories would be precluded from selling non-compliant novelty helmets but would still have the ability to obtain and sell compliant helmets from numerous suppliers and wholesalers. Similarly, to the extent that there are any small entities whose business is based solely on the sale of non-compliant novelty helmets, these entities would be able to obtain, market and sell compliant helmets. I certify that this proposed rule would not have a significant economic impact on a substantial number of small entities.
NHTSA has examined this proposed rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The proposed rule does not directly require a state or local government entity to take any action or refrain from acting. This proposed rule would not alter the relationship between the national government and the States or the distribution of power and responsibilities among the various levels of government. To the extent that any state is impacted by this proposed rule, the principal effect of today's proposed rule will be to assist mandatory helmet law states in enforcing helmet laws requiring motorcyclists to wear helmets complying with FMVSS No. 218. As noted above, NHTSA consulted with certain state officials regarding enforcement of such laws prior to issuing this proposed rule. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant further consultation with State and local officials or the preparation of a federalism summary impact statement.
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted.
Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.”
FMVSS No. 218 is largely based on ANSI Z90.1-1971, “Specifications for Protective Headgear for Vehicular Users,” and incorporates the SAE Recommended Practice J211 MAR 95, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation,” both of which are voluntary consensus standards. While the Snell Memorial Foundation also produces helmet specifications (
Paragraph 2 of the definition of “motorcycle helmet” proposed in this document employs compliance with voluntary standards for protective helmets (other than motorcycle helmets) as a means of delineating those helmets that are not motorcycle helmets subject to NHTSA's jurisdiction.
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995).
Adjusting this amount by the implicit gross domestic product price deflator for the year 2012 results in $141 million (115.366/81.602 = 1.414). The assessment may be included in conjunction with other assessments, as it is here.
This proposed rule would not result in expenditures by State, local or tribal governments of more than $141 million annually as the Federal government (1) is not requiring States to purchase all of the preliminary screening tools described in the cost section and (2) provides grants to States for other motorcycle safety related programs and would likely aid in offsetting the costs estimated in this analysis.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
Under the procedures established by the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The proposed rule would require manufacturers of motorcycle helmets to submit a petition and provide data on motorcycle helmets to NHTSA if they wish to utilize the alternative compliance path proposed in this NPRM.
In compliance with the PRA, we announce that NHTSA is seeking comment on a new information collection.
NHTSA is proposing a new requirement in section 571.218 which would permit manufacturers of motorcycle helmets to petition the agency regarding their belief that their helmet meets the requirements of FMVSS No. 218, excluding the proposed S5.1 which contains preliminary screening requirements. This collection of information would be used by the agency to evaluate the manufacturers' claims and determine if confirmation testing of their product is warranted. If the information submitted to the agency by the manufacturer together with confirmation testing, shows the helmet that is the subject of the petition can meet the requirement of FMVSS No. 218, the brand, model, and size of the helmet will be added to an appendix in the standard and the information will be published in the docket for public reference.
The information would be provided by manufacturers to NHTSA under a reporting requirement that allows them an alternate process in lieu of complying with S5.1(a) through S5.1(c). NHTSA would make the manufacturer's submission available to the public via the Internet if it can be supported by NHTSA testing.
The total estimated annual burden to manufacturers is based on the cost to manufacturers to review the regulatory text, conduct testing of their products, complete and review the collection of information, and transmitting that information to NHTSA.
The cost to review the collection requirement is small. The collection requirement is documented in FMVSS No. 218, Appendix B which will be publicly available through the Internet once the rule is finalized. It is estimated that a management level employee will spend less than one hour reviewing the regulatory text pertaining to the optional reporting requirement. The labor rate for this type of manager is $62.19 per hour
Second, we considered the cost burden imposed by the proposed petition process for motorcycle helmets which requires testing of products. However, testing of products is usual and customary for manufacturers of motorcycle helmets wishing to introduce their products into interstate commerce in the United States. Responsible manufacturers conduct tests during the development phase of their product and again prior to the introduction of their product to market as well as throughout production. Per 49 U.S.C. 30115, manufacturers shall exercise reasonable care in certifying that their equipment complies with applicable FMVSS. This testing often serves, in part, as the basis for exercising reasonable care that their products comply with FMVSS 218. However, the proposed process requests that photographic and video documentation of the testing be provided, which is typically more documentation than is obtained during a standard helmet test. A motorcycle helmet test of four samples is estimated to cost $1,500 and this additional requirement is estimated to cost approximately 7% more than a standard
Next, the cost to complete and review the collection of information is expected to require 15 hours of technical labor which costs $40.17
Finally, the cost to transmit the data to the agency using a contract carrier is expected to be $10.
Therefore, the total estimated cost burden to each manufacturer who chooses to pursue this alternative compliance process is $1,206.64 and the total number of burden hours is 16 per company. Given an annual estimate of three respondents, the total cost burden to manufacturers is $3,619.92 and 48 hours.
The estimated annual cost to the Federal Government is $9,500. This cost includes approximately $4,500 for enforcement testing and approximately $5,000 annually to process, respond to, and publish determinations for the anticipated respondents.
Because this option is being included in the NPRM as a means facilitating the introduction of innovative helmet technologies and materials, it is anticipated that approximately three companies will attempt to pursue this option on an annual basis.
Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. Please submit any comments to the NHTSA Docket Number referenced in the heading of this document, and to Claudia Covell as referenced in the
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Imports, Motor vehicle safety, Motor vehicles, Tires.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as set forth below.
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95.
The revisions and additions read as follows:
S1.
S3.
S4. * * *
(A) Manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce,
(B) manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States by entities that also manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States either motorcycles, helmets certified to FMVSS No. 218, or other motor vehicle equipment and apparel for motorcycles or motorcyclists, or
(C) described or depicted as a motorcycle helmet in packaging, display, promotional information or advertising, or
(D) imported into the United States under the applicable designation(s) for motorcycle helmets in the Harmonized Tariff Schedule of the United States.
(2) Paragraphs (1)(B), (1)(C), and (1)(D) of this definition do not apply to a helmet that is properly labeled and marked by its manufacturer as meeting a standard (other than a standard for motorcycle helmets) issued or adopted by the U.S. Consumer Product Safety Commission, ASTM International, National Operating Committee on Standards for Athletic Equipment, Snell Memorial Foundation, American National Standards Institute, The Hockey Equipment Certification Council, International Mountaineering and Climbing Federation, SFI Foundation, European Commission CE Marking (CE), or the Fédération Internationale de l'Automobile and such labeling and marking and the manner in which it is done are in accordance with that standard.
S5.
S5.1
(a) The inner liner, excluding any cloth or fabric liner, is at least
(b) The combined thickness of the inner liner, excluding any cloth or fabric liner, and outer shell is at least 1 inch (25 mm) thick; and
(c) The inner liner shall not deform more than
S6.
S6.3.2 In testing as specified in S7.2 and S7.3, place the retention system in a position such that it does not interfere with free fall, impact or penetration.
S6.4.1 Immediately before conducting the testing sequence specified in S7.2 through S7.4, condition each test helmet in accordance with any one of the following procedures:
S6.4.2 If during testing, as specified in S7.2.3 and S7.3.3, a helmet is returned to the conditioning environment before the time out of that environment exceeds 4 minutes, the helmet is kept in the environment for a minimum of 3 minutes before resumption of testing with that helmet. If the time out of the environment exceeds 4 minutes, the helmet is returned to the environment for a minimum of 3 minutes for each minute or portion of a minute that the helmet remained out of the environment in excess of 4 minutes or for a maximum of 12 hours, whichever is less, before the resumption of testing with that helmet.
S7.1
S7.1.1 The thickness is measured anywhere within a 4-inch (104 mm) radius of the apex of the helmet.
S7.1.2 The inner liner is measured by penetrating the helmet liner using a stiff metal probe having a gauge of 26-30 (nominal outer diameter 0.01825 inch (0.4636 mm)). The probe is inserted until it contacts the inner surface of the shell in a direction that measures the shortest distance along a line that connects a point on the outer shell and the closest point on the inner surface of the inner liner. The depth of penetration of the probe equates to the thickness of the helmet liner.
S7.1.3 The combined thickness of the inner liner, excluding any cloth or fabric liner, and the outer shell is measured using an outside dimension caliper that can reach the measurement area without interference with the helmet. One tip of the caliper is placed on a point on the outer shell of the helmet and the other tip of the caliper is placed on the closest point on the inner surface of the inner liner.
S7.1.4 The uncompressed thickness of the inner liner is measured in accordance with the procedure in S7.1.2 or the uncompressed thickness of the inner liner and outer shell is measured in accordance with the procedure in S7.1.3. A force gauge having a flat tip of 0.20-0.30 inch (5-7 mm) in diameter is used to apply a compression force of not less than 1 lbf (4.4 N) and not more than 5 lbf (22.2N) to the inner liner adjacent to the area measured for thickness. The compression force is held for 10 seconds and the thickness measurement is repeated at the original location. The thickness measured during compression is subtracted from the initial thickness measured at the original location.
S1.
S2.
(a) Information shall be furnished to: Associate Administrator for Enforcement, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590, Attention: Filing for 218 Motorcycle helmet S5 Alternative compliance Process.
(b) Be written entirely in the English language.
(c) Each submission shall consist of one set of information, all written information shall be on 8
(d) Petitions may be submitted by motorcycle helmet manufacturers.
(e) Set forth in full the data, photographs, videos, and other documentation supporting the petitioner's statements and claims required in S4 of this appendix.
(f) Test data shall be labeled with the appropriate units cited in the standard.
(g) Not request confidential treatment for the contents of the petition.
S3.
The petitioner shall provide the following information—
(a) State the full name and address of the original equipment manufacturer (petitioner), the name and contact information for a point of contact to which the Agency can direct correspondence, the nature of the petitioning organization (individual, partnership, corporation, etc.) and the name of the State or country under the laws of which it is organized.
(b) Identify the motorcycle helmet for which the petition is being submitted. The motorcycle helmet must be identified by manufacturer's name in accordance with S5.6.1(a), precise model designation per S5.6.2(a)(4), and manufacturer's name and/or brand per S5.6.2(a)(5) of FMVSS No. 218. The helmet identification provided in the petition must correspond to the information found on the helmet and in the supporting documentation submitted with the petition.
(c) The petitioner shall provide evidence of current information on file to facilitate correspondence with NHTSA and procurement of test samples by NHTSA, as applicable, including, but not limited to, part 551 of this chapter, part 566 of this chapter, and compliance with other applicable legal requirements. Valid contact information must be made available. Submission of a petition in accordance with this appendix does not constitute submission of information with respect to any other regulation.
(d) Submissions shall be unique and specific to the motorcycle helmet for which a petition is being submitted in accordance with this appendix. The brand and precise model designation must refer to a unique design and fabrication process for a specific motorcycle helmet. The submission shall address every size that will be made available for sale. Information about the differences in each size that will be sold shall be completely described.
(e) The basis on which the manufacturer certifies the helmet must be explained and address all aspects of FMVSS No. 218 including data evaluating the helmet to all aspects of FMVSS No. 218. Test protocol(s), calibration records, test dates, information about the testing organization(s), photographs of test locations and test results, videos of the actual testing of the helmet, and any other relevant information must be fully documented.
(f) The manufacturer shall provide contact information for the independent testing organization(s) used to collect supporting data and a statement granting the Agency permission to discuss the testing contained in the petition with that testing organization.
(g) Photographs and other descriptive characteristics to adequately describe and identify the samples must be provided. Distinguishing features must be identified. Such photographic and descriptive material shall not be copyrighted, shall be of sufficient quality for reproduction, and may be reproduced by the Agency for purposes of disseminating information about the helmets listed in appendix C of this standard.
S4.
(a) NHTSA will process any petition that contains the information and supporting documentation specified by this section. If a petition fails to provide any of the information, NHTSA will not process the petition.
(b) The Associate Administrator seeks to review each submission and inform the manufacturer not later than 60 days after its receipt of the written submission, if the information is complete or acceptable. The Associate Administrator does not accept any submission that does not contain all of the information specified in this appendix, or that contains information suggesting that the design or manufacture of the motorcycle helmet which is the subject of the petition does not conform to all aspects of FMVSS 571.218, Motorcycle Helmets, excluding S5.1.
(c) At any time during the agency's consideration of a petition submitted under this part, the Associate Administrator for Enforcement may request the petitioner to submit additional supporting information and data. If such a request is not honored to the satisfaction of the agency, the petition will not receive further consideration until the information is submitted.
(d) If the submission is complete, valid, and provides adequate indication that the helmet can comply with S5.2-S5.7 of FMVSS No. 218, NHTSA will contact the manufacturer to obtain samples for testing. NTHSA will procure up to ten identical samples of each size motorcycle helmet for which the manufacturer is submitting a petition. The manufacturer must furnish the helmet positioning index for each size helmet at the time of procurement.
(e) NTHSA will conduct testing of the helmet, at its discretion, to some or all of the requirements, in accordance with the test procedures established in FMVSS No. 218. If any apparent non-compliances with FMVSS No. 218 are identified, the Associate Administrator shall reject the submission.
(f) The Associate Administrator seeks to test samples within six months of receipt. Samples that cannot be procured for any reason will not be tested and the petition will not be granted. Samples will not be returned to the manufacturer.
(g) If the submission is accepted, if NTHSA finds no discrepancy with administrative or performance information included in the submission, and if testing performed on behalf of NHTSA is acceptable, the complete submission and NHTSA's determination will be placed in the docket. Such motorcycle helmets identified by manufacturer, brand (if applicable), precise model designation, and size will be listed in appendix C of this standard.
(h) Products manufactured, sold, offered for sale, introduced in interstate commerce, or imported into the United States under the brand and precise model name for which a submission was made must be identical in design, manufacturing processes, materials, and sizes, to those submitted to NHTSA for review.
(i) The granting of the petition is valid only:
(1) As long as the design and manufacture of the helmet does not vary from the make, model, and size helmet for which the petition was submitted; and
(2) While the make, model, and size of helmet are listed in appendix C of this standard.
(j) The Associate Administrator terminates or modifies its determination if—
(1) Granting the petition is no longer consistent with the public interest and the objectives of the Act; or
(2) Subsequent to granting the petition, additional information or testing becomes available to indicate the helmet fails to comply with any requirement of the standard; or
(3) Subsequent to granting the petition, additional information or testing becomes available to indicate the helmet may fail to comply with any requirement of the standard and the responsible manufacturer is non-responsive or fails to comply with his obligations under the law; or
(4) Subsequent to granting the petition, additional information or testing becomes available to indicate the helmet poses an unreasonable risk to safety; or
(5) The petition was granted on the basis of false, fictitious, fraudulent, or misleading representations or information.
(k) The knowing and willful submission of false, fictitious or fraudulent information will subject the petitioner to the civil and criminal penalties of 18 U.S.C. 1001.
At the time of this notification, there are no motorcycle helmets that meet the alternative compliance process for S5.
Commodity Futures Trading Commission.
Notice of proposed order and request for comment.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is requesting comment on a proposed exemption issued in response to an application from Southwest Power Pool, Inc. to exempt certain Transmission Congestion Rights, Energy Transactions, and Operating Reserve Transactions from the provisions of the Commodity Exchange Act and Commission regulations.
Comments must be received on or before June 22, 2015.
You may submit comments by any of the following methods:
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All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Robert Wasserman, Chief Counsel, 202-418-5092,
The Commission is requesting comment on a proposed exemption (the “Proposed Exemption”) issued in response to an application (“Exemption Application”)
The Commission seeks comment on the Exemption Application, the Proposed Exemption and related questions. A copy of the Exemption Application is available on the Commission's Web site at:
On October 17, 2013, SPP filed an Exemption Application
SPP specifically requests that the Commission exempt from most provisions of the CEA certain “transmission congestion rights,” “energy transactions,” and “operating reserve transactions,” as those terms are defined in the Exemption Application, if such transactions are offered or entered into pursuant to a Tariff under which SPP operates that has been approved by FERC, as well as any persons (including SPP, its members and its market participants) offering, entering into, rendering advice, or rendering other services with respect to such transactions.
As discussed further below, the relief that SPP is requesting is substantially similar to the relief the Commission granted other RTOs and Independent System Operators (“ISOs”) in April of 2013.
On July 21, 2010, President Obama signed the Dodd-Frank Act. Title VII of the Dodd-Frank Act amended the CEA
The Dodd-Frank Act also added a savings clause that addresses the roles of the Commission, FERC, and state regulatory authorities as they relate to certain agreements, contracts, or transactions traded pursuant to the tariff or rate schedule of an RTO that has been approved by FERC or the state regulatory authority.
The Dodd-Frank Act granted the Commission specific powers to exempt certain contracts, agreements, or transactions from duties otherwise required by statute or Commission regulation by adding, as relevant here, new section 4(c)(6)(A) to the CEA, providing for exemptions for certain transactions entered into pursuant to a tariff or rate schedule approved or permitted to take effect by FERC.
The Commission must act “in accordance with” sections 4(c)(1) and (2) of the CEA, when issuing an exemption under section 4(c)(6). Section 4(c)(1) grants the Commission the authority to exempt any agreement, contract, or transaction or class of transactions, including swaps, from certain provisions of the CEA, in order to “promote responsible economic or financial innovation and fair competition.”
SPP is subject to regulation by FERC.
In 1920, Congress established the Federal Power Commission (“FPC”).
In 1996, FERC issued FERC Order 888, which promoted competition in the generation market by ensuring fair access and market treatment by transmission customers.
In addition, FERC has issued orders that address areas such as increased RTO participation by transmission utilities, increased use of long-term firm transmission rights, increased investment in transmission infrastructure, reduced transmission congestion, and the use of demand-response.
On April 2, 2013, the Commission issued the RTO-ISO Order which exempts specified transactions of particular RTOs and ISOs from certain provisions of the CEA and Commission regulations.
In the RTO-ISO Order, the Commission excepted certain CEA provisions pertaining to fraud and manipulation, and scienter-based prohibitions, from the exemption.
By enacting CEA section 22, Congress provided private rights of action as a means for addressing violations of the Act alternative to Commission enforcement action. It would be highly unusual for the Commission to reserve to itself the power to pursue claims for fraud and manipulation—a power that includes the option of seeking restitution for persons who have sustained losses from such violations or a disgorgement of gains received in connection with such violations
After due consideration, the Commission proposes to exempt certain Transmission Congestion Rights (“TCRs”), Energy Transactions, and Operating Reserve Transactions, each as defined below, pursuant to section 4(c)(6) of the Act.
A TCR
“Energy Transactions” are transactions in the SPP “Day-Ahead Market” or “Real-Time Balancing Market,” as those terms are defined in the Proposed Exemption, for the purchase or sale of a specified quantity of electric energy at a specified location (including virtual bids and offers) where the price of electric energy is established at the time the transaction is executed.
“Operating Reserve Transactions” allow SPP to purchase through auction or otherwise as permitted in its Tariff, for the benefit of load serving entities (“LSEs”) and resources, the right, during a period of time specified in SPP's Tariff, to require the seller to operate electric facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of a specified quantity of electric energy into or from the electric energy transmission system operated by SPP with a Reserve Transaction (meaning physical performance by the seller's facilities within a response interval specified in SPP's Tariff) or an Area Control Error Regulation Transaction (meaning prompt physical performance by the seller's facilities as specified in SPP's Tariff).
The Proposed Exemption would be subject to certain conditions that are consistent with the RTO-ISO Order. First, all parties to the agreements, contracts or transactions that are covered by the Proposed Exemption must be “appropriate persons,” as such term is defined in sections 4(c)(3)(A) through (J) of the Act, “eligible contract participants,” as such term is defined in section 1a(18)(A) of the Act and in Commission regulation 1.3(m),
Second, the agreements, contracts or transactions that are covered by the Proposed Exemption must be offered or sold pursuant to SPP's Tariff, which has been approved or permitted to take effect by FERC.
Third, neither SPP's Tariff nor other governing documents may include any requirement that SPP notify a member prior to providing information to the Commission in response to a subpoena or other request for information or documentation.
Finally, information-sharing arrangements that are satisfactory to the Commission between the Commission and FERC must remain in full force and effect.
As discussed above, the Commission proposes to exempt the Transactions pursuant to section 4(c)(6) of the Act based upon representations made in the Exemption Application and in the supporting materials provided by SPP and its counsel, and any material change or omission in the facts and circumstances that alter the grounds for the Proposed Exemption might require the Commission to reconsider its finding that the exemption is appropriate and/or in the public interest and consistent with the purposes of the CEA (these limitations are, again, consistent with the RTO-ISO Order).
The Dodd-Frank Act amended CEA section 4(c) to add sections 4(c)(6)(A) and (B), which provide for exemptions for certain transactions entered into: (a) Pursuant to a tariff or rate schedule approved or permitted to take effect by FERC, or (b) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality, as eligible for exemption pursuant to the Commission's 4(c) exemptive authority.
CEA section 4(c)(1) requires that the Commission act “by rule, regulation or order, after notice and opportunity for hearing.” It also provides that the Commission may act “either unconditionally or on stated terms or conditions or for stated periods and either retroactively or prospectively or both” and that the Commission may provide exemption from any provisions of the CEA except subparagraphs (C)(ii) and (D) of section 2(a)(1).
CEA section 4(c)(2) requires the Commission to determine that: To the extent an exemption provides relief from any of the requirements of CEA section 4(a), the requirement should not be applied to the agreement, contract or transaction; the exempted agreement, contract, or transactions will be entered into solely between appropriate persons;
CEA section 4(c)(3) outlines who may constitute an appropriate person for the purpose of a 4(c) exemption, including as relevant to this Proposed Exemption: (a) Any person that fits in one of ten defined categories of appropriate persons; or (b) such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.
In connection with the Proposed Exemption, the Commission has considered the request to exempt the Covered Transaction from most provisions of the Act, and proposes to determine that: (i) The Proposed Exemption is consistent with the public interest and the purposes of the CEA; (ii) CEA section 4(a) should not apply to the Covered Transactions or entities eligible for the Proposed Exemption, (iii) the persons eligible to rely on the Proposed Exemption are appropriate persons pursuant to CEA section 4(c)(3); and (iv) the Proposed Exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA.
As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), the Commission proposes to determine that the Proposed Exemption is consistent with the public interest and the purposes of the CEA. Section 3(a) of the CEA provides that transactions subject to the CEA affect the national public interest by providing a means for managing and assuming price risk, discovering prices, or disseminating pricing information through trading in liquid, fair and financially secure trading facilities.
It is the purpose of this Act to serve the public interests described in subsection (a) through a system of effective self-regulation of trading facilities, clearing systems, market participants and market professionals under the oversight of the Commission. To foster these public interests, it is further the purpose of this Act to deter and prevent price manipulation or any other disruptions to market integrity; to ensure the financial integrity of all transactions subject to this Act and the avoidance of systemic risk; to protect all market participants from fraudulent or other abusive sales practices and misuses of customer assets; and to promote responsible innovation and fair competition among boards of trade, other markets and market participants.
SPP asserts that the Proposed Exemption would be consistent with the public interest and purposes of the CEA,
SPP also explains that the Covered Transactions are entered into by commercial participants that are in the business of generating, transmitting, and distributing electric energy,
Fundamental to the Commission's “public interest” and “purposes of the [Act]” analysis is the fact that the Covered Transactions are inextricably tied to SPP's physical delivery of electric energy, as represented in the Exemption Application.
Finally, and as discussed in detail below, the extent to which the Proposed Exemption is consistent with the public interest and the purposes of the Act can, in major part, be assessed by the extent to which the Tariff and activities of SPP, and supervision by FERC, are congruent with, and sufficiently accomplish, the regulatory objectives of the relevant core principles (“Core Principles”) set forth in the CEA for derivatives clearing organizations (“DCOs”) and swap execution facilities (“SEFs”). Specifically, ensuring the financial integrity of the Covered Transactions and the avoidance of systemic risk, as well as protection from the misuse of participant assets, are addressed by the core principles for DCOs. Providing a means for managing or assuming price risk and discovering prices, as well as prevention of price manipulation and other disruptions to market integrity, are addressed by the core principles for SEFs. Deterrence of price manipulation (or other disruptions to market integrity) and protection of market participants from fraudulent sales practices is achieved by the Commission retaining and exercising its jurisdiction over these matters. Therefore, the Commission has incorporated its DCO and SEF core principle analyses, set forth below, into its consideration of the Proposed Exemption's consistency with the public interest and the purposes of the Act. In the same way, the Commission has considered how the public interest and the purposes of the CEA are also addressed by the manner in which SPP complies with FERC's Credit Reform Policy.
Based on this review, the Commission proposes to determine that the Proposed Exemption is consistent with the public interest and the purposes of the CEA,
CEA section 4(c)(2)(A) requires, in part, that the Commission determine that the Covered Transactions described in the Proposed Exemption should not be subject to CEA section 4(a)—generally, the Commission's exchange trading requirement for a contract for the purchase or sale of a commodity for future delivery. Based in major part on SPP's representations, the Commission has reviewed the Covered Transactions, SPP, and its markets using the CEA Core Principle requirements applicable to a DCO and to a SEF as a framework for its public interest and purposes of the CEA determination.
The Commission is requesting comment on whether its Proposed Exemption of the Covered Transactions from CEA section 4(a) is appropriate.
Section 4(c)(2)(B)(i) of the CEA requires that the Commission determine that the Proposed Exemption is restricted to Covered Transactions entered into solely between “appropriate persons,” as that term is defined in section 4(c)(3) of the Act. Section 4(c)(3) defines the term “appropriate person” to include: (1) Any person that falls within one of the ten categories of persons delineated in sections 4(c)(3)(A) through (J) of the Act; or (2) such other persons that the Commission determines to be appropriate pursuant to the limited authority provided by section 4(c)(3)(K).
SPP asserts that its market participants fit within the “appropriate person” requirement under CEA section 4(c)(3) and as set forth in the RTO-ISO Order, relying primarily on two categories of appropriate persons. The first category includes those entities that have a net worth exceeding $1,000,000
SPP explains that FERC has instructed all RTOs and ISOs subject to FERC supervision to create minimum standards for market participants. SPP states that:
In FERC Order No. 741, FERC directed each RTOs and ISOs to establish minimum criteria for market participants. FERC did not specify the criteria the RTOs or ISOs should apply, but rather directed them to establish criteria through their stakeholder processes.
SPP further states that its Tariff includes minimum capitalization criteria that require market participants to have at a minimum: (a) A tangible net worth of $1,000,000; (b) assets of $10,000,000; (c) a credit rating of BBB- or its equivalent; (d) a guaranty through which the Guarantor is used to meet alternatives (a) through (c); or (e) a minimum deposit of $200,000 in financial security, plus, if the participant's estimated market exposure is greater than $100,000, double the amount of any financial security required under the SPP Tariff.
Consistent with CEA section 4(c)(3), the Commission is proposing to limit the Proposed Exemption to persons who are “appropriate persons,” as defined in sections 4(c)(3)(A) through (J) of the Act,
The Commission is requesting comment on whether such limitation on the Proposed Exemption is appropriate.
CEA section 4(c)(2)(B)(ii) requires the Commission to make a determination whether the Covered Transactions subject to the Proposed Exemption will have a material adverse effect on the ability of the Commission or any contract markets to perform regulatory or self-regulatory duties.
SPP contends that the Proposed Exemption will not have a material adverse effect on the Commission's or any contract market's ability to discharge its regulatory function,
Under Section 4(d) of the Act, the Commission will retain authority to conduct investigations to determine whether SPP is in compliance with any exemption granted in response to this request. . . . [T]he requested exemptions would also preserve the Commission's existing enforcement jurisdiction over fraud and manipulation. This is consistent with section 722 of the Dodd-Frank Act, the existing MOU between the FERC and the Commission and other protocols for inter-agency cooperation. SPP will continue to retain records related to the Transactions, consistent with existing obligations under FERC regulations.
The regulation of exchange-traded futures contracts and significant price discovery contracts (“SPDCs”) will be unaffected by the requested exemptions. Futures contracts based on electricity prices set in SPP's markets that are traded on a designated contract market and SPDCs will continue to be regulated by and subject to the requirements of the Commission. No current requirement or practice of SPP or of a contract market will be affected by the Commission's granting the requested exemptions.
These factors appear to support the Proposed Exemption. In addition, the limitation of the Proposed Exemption to Covered Transactions between certain appropriate persons avoids potential issues regarding financial integrity and customer protection.
Moreover, the Proposed Exemption does not exempt SPP from certain CEA provisions, including, but not limited to, sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4
In addition, it appears that granting the Proposed Exemption for the Covered Transactions would not have a material adverse effect on the ability of any contract market to discharge its self-regulatory duties under the Act. With respect to TCRs and Operating Reserve Transactions, these transactions do not appear to be used for price discovery or as settlement prices for other transactions in Commission-regulated markets. Therefore, the Proposed Exemption should not have a material adverse effect on any contract market carrying out its self-regulatory function.
With respect to Energy Transactions, these transactions do have a relationship to Commission-regulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction. Granting the Proposed Exemption, however, should not pose regulatory burdens on a contract market because, as discussed in more detail below, SPP has market monitoring systems in place to detect and deter manipulation that takes place on its markets. Also, as a condition of the Proposed Exemption, the Commission would be able to obtain data from FERC with respect to activity on SPP's markets that may impact trading on Commission-regulated markets.
Finally, the Commission notes that if the Covered Transactions ever could be used in combination with trading
The CFTC is requesting comment as to whether the Proposed Exemption will have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the Act, and, if so, what conditions can or should be imposed on the Order to mitigate such effects.
On October 21, 2010, FERC amended its regulations to encourage clear and consistent risk and credit practices in the organized wholesale electric markets to,
In effect, FERC Order 741 requires those RTOs that are subject to FERC supervision to implement the following reforms: “shortened settlement timeframes, restrictions on the use of unsecured credit, elimination of unsecured credit in all [FTRs] or equivalent markets, adoption of steps to address the risk that RTOs . . . may not be allowed to use netting and set-offs, establishment of minimum criteria for market participation, clarification regarding the organized markets' administrators' ability to invoke `material adverse change' clauses to demand additional collateral from participants, and adoption of a two-day grace period for ‘curing’ collateral calls.”
As discussed in more detail below, particularly in section V.D., the requirements set forth in FERC Order 741 appear to achieve goals similar to the regulatory objectives of the Commission's DCO Core Principles.
FERC regulation 35.47(c) calls for the elimination of unsecured credit in the FTR markets and equivalent markets.
In addition, FERC regulation 35.47(a) requires RTOs to have tariff provisions that “[l]imit the amount of unsecured credit extended by [an RTO] to no more than $50 million for each market participant.”
FERC regulation 35.47(b) mandates that RTOs have billing periods and settlement periods of no more than seven days.
FERC regulation 35.47(d) requires RTOs to ensure the enforceability of their netting arrangements in the event of the insolvency of a member by doing one of the following: (1) Establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC.
FERC regulation 35.47(e) limits the time period within which a market participant must cure a collateral call to no more than two days.
FERC regulation 35.47(f) imposes minimum market participant eligibility requirements that apply consistently to all market participants and, as set forth in the preamble to Original Order 741, requires RTOs to engage in periodic verification of market participant risk management policies and procedures.
FERC regulation 35.47(g) requires RTOs to specify in their tariffs the conditions under which they will request additional collateral due to a material adverse change.
SPP represents that it has complied with, and fully implemented, the requirements set forth in Order 741.
DCO Core Principle A requires a DCO to comply with each core principle set forth in section 5b(c)(2) of the CEA, as well as any requirement that the Commission may impose by rule or regulation pursuant to section 8a(5) of the Act for a DCO to be registered and maintain its registration.
SPP represents that, although it is principally regulated by FERC and that there are differences between it and registered DCOs, SPP's practices are consistent with the core principles for DCOs.
DCO Core Principle B requires a DCO to have adequate financial, operational, and managerial resources to discharge each of its responsibilities.
SPP represents that it maintains sufficient financial resources to meet its financial obligations to its members notwithstanding a default by the member creating the largest financial exposure for that organization in extreme but plausible market conditions.
On the basis of these representations, the Commission believes that SPP's financial resource requirements appear to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle B in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SPP represents that it has sufficient operational resources to cover its operating costs through a Tariff Administration Charge (“Charge”) allocated to its participants and set forth in Schedule 1-A of its Tariff.
SPP represents that it has adequate managerial resources to discharge its responsibilities as an organized wholesale electric energy market.
SPP represents that it has sufficient human resources to fulfill its obligations to its members, market participants, and customers.
DCO Core Principle C requires each DCO to establish appropriate admission and continuing eligibility standards for member and participants (including sufficient financial resources and operational capacity), as well as to establish procedures to verify, on an ongoing basis, member and participant compliance with such requirements.
As discussed above, the FERC Credit Policy appears to impose participant eligibility requirements that are consistent with regulatory objectives of DCO Core Principle C.
Because the minimum participation criteria adopted by SPP is included in its Tariff, which is publicly available on SPP's Web site, such criteria is publicly disclosed. In addition, FERC notes that it reviews proposed tariff language “to ensure that it is just and reasonable and not unduly discriminatory,”
SPP represents that it has adopted minimum participant eligibility criteria that include capitalization requirements (which permits participation by less-well-capitalized members if they post additional collateral), as well as certain minimum eligibility qualifications.
SPP represents that its Tariff includes minimum eligibility requirements consistent with the RTO-ISO Order's Appropriate Persons Requirement.
In addition, SPP requires that its market participants satisfy specified credit requirements
DCO Core Principle D requires each DCO to demonstrate the ability to manage the risks associated with discharging the responsibilities of a DCO through the use of appropriate tools and procedures.
SPP represents that the risk management provisions set forth in SPP's Tariff provide SPP with appropriate tools and procedures to manage the risk associated with operating its wholesale and related markets.
In addition, an RTO's participation standards can include the supervision of a market participant's risk management program.
SPP represents that its risk management procedures measure, monitor, and mitigate its credit exposure to market participants.
SPP represents that a market participant is required to have credit that is sufficient to support its market activities or total potential exposure.
Since FERC regulations 35.47(a) and 35.47(c) appear to be designed to manage risk and limit an RTO's exposure to potential losses from a market participant, SPP's compliance with these requirements would appear to be congruent with, and to accomplish sufficiently, the regulatory objectives of Core Principle D, with respect to unsecured credit, in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SPP represents that it requires a market participant to either pay SPP invoices to reduce its credit exposure and/or post additional financial security (collateral) whenever there is a total potential exposure violation, specifically (1) the participant's total potential exposure equals or exceeds that participant's unsecured credit and posted financial security (excluding any financial security provided for TCR activity), and/or (2) the credit required for a market participant's TCR activity exceeds the financial security provided by the market participant to support the activity.
On the basis of these representations, it appears that the requirements to post additional financial security and cure collateral calls in no more than two days help SPP manage risk and limit its exposure against potential losses from a market participant. These requirements appear to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle D, with respect to limiting exposure to potential losses through the use of risk control mechanisms and the grace period to cure, in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
FERC regulation 35.47(g) requires RTOs to specify in their tariffs the conditions under which they will request additional collateral due to a material adverse change. However, as stated by FERC, this list of conditions is not meant to be exhaustive, and RTOs are permitted to use “their discretion to request additional collateral in response to unusual or unforeseen circumstances.”
As discussed previously, SPP represents that it requires a market participant to maintain unsecured credit and/or post financial security (collectively, “margin”) that is sufficient to support its market activities or total potential exposure at all times.
FERC regulation 35.47(d) requires RTOs to either (1) establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC. Otherwise, RTOs are prohibited from netting market participants' transactions and required to establish credit based on market participants' gross obligations. FERC regulation 35.47(d), which attempts to ensure that, in the event of a bankruptcy, RTOs are not prohibited from offsetting accounts receivable against accounts payable, is congruent with the regulatory objectives of Core Principle D. In effect, this requirement appears to attempt to clarify an RTO's legal status to take title to transactions in an effort to establish mutuality in the transactions as legal support for set-off in bankruptcy.
SPP represents that it is a central counterparty and that its Tariff indicates that SPP is the counterparty to the Covered Transactions.
Compliance with FERC regulation 35.47(d) appears to be congruent with, and to accomplish sufficiently, Core Principle D's regulatory objectives, with respect to the ability to offset market obligations, in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Among the requirements set forth by Core Principle E are the requirements that a DCO (a) have the ability to complete settlements on a timely basis under varying circumstances, and (b) maintain an adequate record of the flow of funds associated with each transaction that the DCO clears.
SPP represents that it has policies and procedures that contain detailed procedures regarding data and record-keeping, and that it has billing periods and settlement periods of no more than seven days each (for a total of 14 days).
DCO Core Principle F requires a DCO to have standards and procedures designed to protect and ensure the safety of member and participant funds, to hold such funds in a manner that would minimize the risk of loss or delay in access by the DCO to the funds, and to invest such funds in instruments with minimal credit, market, and liquidity risks.
SPP represents that it has Tariff provisions that accomplish the regulatory goals of DCO Core Principle F.
DCO Core Principle G requires a DCO to have rules and procedures designed to allow for the efficient, fair, and safe management of events when members or participants become insolvent or otherwise default on their obligations to the DCO.
SPP represents that it has Tariff procedures that address events surrounding the insolvency or default of a market participant.
Generally speaking, it is a well-established tenet of clearing that a DCO acts as the buyer to every seller and as the seller to every buyer, thereby substituting the DCO's credit for bilateral counter-party risk. As such, when a DCO is involved, there is little question as to the identity of a counterparty to a given transaction. However, because an RTO can act as agent for its participants, there could be ambiguity as to the identity of a counterparty to a given transaction. As a result, in the event of a bankruptcy of a market participant and in the event of a lack of the mutuality of obligation required by the Bankruptcy Code,
The foregoing arrangements appear congruent to, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle G in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle H requires a DCO to (1) maintain adequate arrangements and resources for the effective monitoring and enforcement of compliance with its rules and for resolution of disputes, (2) have the authority and ability to discipline, limit, suspend, or terminate a clearing member's activities for violations of those rules, and (3) report to the Commission regarding rule enforcement activities and sanctions imposed against members and participants.
SPP represents that it maintains a Tariff or other procedures that accomplish the regulatory goals of DCO Core Principle H.
Based on SPP's representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle H in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle I requires a DCO to demonstrate that: (1) It has established and will maintain a program of oversight and risk analysis to ensure that its automated systems function properly and have adequate capacity and security, and (2) it has established and will maintain emergency procedures and a plan for disaster recovery and will periodically test backup facilities to ensure daily processing, clearing and settlement of transactions.
SPP represents that it has policies and procedures that accomplish the regulatory goals of DCO Core Principle I,
Based on SPP's representations, it appears that these system safeguard practices are congruent with, and accomplish sufficiently, the regulatory objectives of DCO Core Principle I in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle J requires a DCO to provide to the Commission all information that the Commission determines to be necessary to conduct oversight of the DCO.
Based on the foregoing, including SPP's representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle J in the context of Petitioners' activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle K requires a DCO to maintain records of all activities related to its business as a DCO in a form and manner acceptable to the Commission for a period of not less than five years.
SPP represents that its practices satisfy the regulatory goals of DCO Core Principle K because it has adequate recordkeeping requirements or systems.
Based on these regulations and SPP's representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle K in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle L requires a DCO to make information concerning the rules and operating procedures governing its clearing and settlement systems (including default procedures) available to market participants.
SPP represents that it makes its Tariff and related governing documents, such as the SPP Bylaws, Membership Agreement, and the IM Protocols, publicly available on its Web site, which, in turn, allows market participants (and the public) to access information about the rules and operations of the SPP markets, including among other things, participant and product eligibility requirements, credit requirements for
Based on SPP's representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle L in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle M requires a DCO to enter into and abide by the terms of all appropriate and applicable domestic and international information-sharing agreements, and use relevant information obtained from the agreements in carrying out the DCO's risk management program.
SPP represents that it has policies and procedures that allow it to share information with, and receive information from, other entities as necessary to carry out its risk management functions.
Based on the foregoing and SPP's representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle M in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle N requires a DCO to avoid, unless necessary or appropriate to achieve the purposes of the CEA, adopting any rule or taking any action that results in any unreasonable restraint of trade, or imposing any material anticompetitive burden.
As discussed above, the formation of SPP and other RTOs and ISOs was encouraged by FERC (pursuant to FERC Orders 888 and 2000) in order to foster greater competition in the electric energy generation sectors by allowing open access to transmission lines.
Based on SPP's representations, it appears that SPP's existence and practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle N. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle O requires a DCO to establish governance arrangements that are transparent to fulfill public interest requirements and to permit the consideration of the views of owners and participants.
SPP represents that its Tariff, governing documents, and applicable state law set forth specific governance standards that are consistent with the regulatory goals which address, for example, director independence and fitness requirements.
Based on SPP's representations, it appears that SPP's governance structure is congruent with, and sufficiently accomplishes, the regulatory objectives of DCO Core Principle O in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Pursuant to DCO Core Principle P, each DCO must establish and enforce rules to minimize conflicts of interest in the decision-making process of the DCO.
SPP represents that it has adopted stringent conflict of interest requirements as well as a process for resolving such conflicts in its Standards of Conduct for members of its board of
In addition to the Standards of Conduct, SPP asserts that the SPP Market Monitor and all of its employees must comply with additional independence and ethics standards set forth in the SPP Tariff, including prohibiting: (a) Material affiliation with any market participant or any affiliate of a market participant; (b) serving as an officer, employee, or partner of a market participant; (c) material financial interest in any market participant or any affiliate of a market participant (allowing for such potential exceptions as mutual funds and non-directed investments); (d) engaging in any market transactions other than the performance of their duties under the Tariff; (e) receiving compensation, other than by SPP, for any expert witness testimony or other commercial services to SPP or to any other party in connection with any legal or regulatory proceeding or commercial transaction relating to SPP; and (f) acceptance of anything of value from a market participant in excess of a
Based upon SPP's representations, it appears that the conflict of interest policies SPP has adopted and that the requirements SPP is subject to are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle P in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle Q provides that each DCO shall ensure that the composition of the governing board or committee of the derivatives clearing organization includes market participants.
FERC regulations require that an RTO “must have a decision making process that is independent of control by any market participant or class of participants.”
Based on SPP's representations, and the regulations and supervision of FERC, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle Q in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle R requires a DCO to have a well-founded, transparent, and enforceable legal framework for each aspect of its activities.
SPP asserts that it operates under a transparent and comprehensive legal framework that is grounded in the Federal Power Act and administered by FERC.
Based on SPP's representations, it appears that this framework is congruent with, and sufficiently accomplishes, the regulatory objectives of Core Principle R in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 1 requires a SEF to comply with the Core Principles described in part 37 of the Commission's Regulations.
As demonstrated by the following analysis, based upon SPP's representations and the Core Principle discussions below, and in the context of SPP's activities with respect to the Covered Transactions within the scope of this Proposed Exemption, the Commission has made a preliminary determination that in the context of SPP's activities with respect to the Covered Transactions within the scope of this Proposed Exemption, SPP's practices appear congruent with, and to accomplish sufficiently, the regulatory objectives of each SEF Core Principle. The Commission requests comment with respect to this preliminary determination.
SEF Core Principle 2 requires a SEF to establish and enforce compliance with any rule of the SEF.
According to SPP, each of the Covered Transactions takes place on markets that are monitored by both SPP and the SPP Market Monitor (its independent market monitor responsible to FERC). In addition, SPP states that an RTO must demonstrate to FERC that it performs certain self-regulatory and/or market monitoring functions.
SPP asserts that FERC Order Nos. 719 and 2000 require RTOs to employ a Market Monitor to monitor the conduct of both the RTO and its market participants with regard to all RTO markets and services, stating that the SPP Market Monitor is an independent department within SPP that reports directly to the SPP Board of Directors, except that the President of SPP (a member of the Board of Directors) is excluded from participating in oversight of the Market Monitor. Moreover, according to SPP, it is obligated to ensure that the Market Monitor is appropriately staffed and provided with sufficient resources and access to data to carry out its duties under the Tariff.
SPP represents that it has transparent rules for its market, including rules to deter abuses, market monitoring and mitigation plans aimed at discovering and addressing potential and actual abuses, and has enforcement mechanisms that allow SPP and the SPP Market Monitor to, among other things, monitor its markets, investigate suspected Tariff violations, take actions against violators and refer potential violations to FERC.
Based on the foregoing, it appears that SPP's practices are consistent with, and sufficiently accomplish, the regulatory goals of SEF Core Principle 2 in the context of SPP's activities with respect to the Covered Transactions. The Commission requests comment with respect to this preliminary determination.
SEF Core Principle 3 requires a SEF submitting a contract to the Commission for certification or approval to demonstrate that the swap is not readily susceptible to manipulation.
SPP defines Energy Transactions as transactions in the SPP Day-Ahead-Market or Real-Time Balancing Market for the purchase or sale of a specified quantity of electric energy at a specified location (including virtual bids and offers) where among other conditions, the aggregate cleared volume of both physical and cash-settled energy transactions for any period of time is limited by the physical capability of the electric energy transmission system operated by SPP for that period of time.
SPP indicates that its representations to the Commission are similar to that of other RTOs and ISOs to which the RTO-ISO Order was issued with respect to SEF Core Principle 3.
Based on SPP's representations regarding the surveillance carried out by its SPP Market Monitor and the method by which the Day-Ahead and Real-Time Balancing auctions are conducted, it appears that SPP's policies and procedures to mitigate the susceptibility of Energy Transactions to manipulation are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 3 in the context of SPP's activities with respect to the Energy Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SPP represents that a Transmission Congestion Right (“TCR”) is a transaction that entitles one party to receive, and obligates another party to pay, an amount based solely on the difference the price of electric energy, established on an electric energy market administered by SPP, at a specified source and a specified sink.
As previously discussed, SPP and the SPP Market Monitor conduct market surveillance of both the Real-Time Balancing and Day-Ahead markets to identify manipulation of the price of electric energy. In the event unusual trading activity is detected by the SPP Market Monitor, the SPP Market Monitor will immediately contact FERC's Office of Enforcement, so that an investigation into the unusual activity may begin.
The Commission believes that SPP's policies and procedures should mitigate the susceptibility of TCRs to manipulation and that they are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 3 in the context of SPP's activities with respect to TCRs. The Commission seeks comment with respect to this preliminary conclusion.
SPP has proposed a Reserve Transactions Market.
The Commission notes that SPP would apply the same oversight policies and procedures to Reserve Transactions that it applies to Energy Transactions and FTRs. The Commission believes that these measures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 3 in the context of SPP's activities with respect to Reserve Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 4 requires a SEF to establish and enforce rules or terms and conditions defining trading procedures to be used in entering and executing orders traded on or through the SEF and procedures for the processing of swaps on or through the SEF.
Generally, SPP's Tariff lists how Energy Transactions are to be entered into the trading platform.
The process by which the TCR allocation and auction takes place provides SPP with a basic system that allows SPP to determine which market participants hold TCRs. According to SPP's Tariff, and similar to other RTOs, SPP offers ARRs to eligible transmission customers to address their exposure to transmission congestion costs, which is based on their transmission service or network load, with SPP performing a simultaneous feasibility analysis to ensure that ARR awards do not exceed physical system capability. SPP then conducts auctions for TCRs, and also oversees a secondary TCR market. SPP systems track ownership of ARRs and TCRs, including transfers of TCR ownership in the secondary market and SPP verification that secondary TCR owners qualify under SPP's TCR creditworthiness requirements. SPP applies to this market the market monitoring and mitigation plans that SPP has developed for all markets and services under the SPP Tariff.
Based on the foregoing representations, it appears that SPP's policies and procedures regarding the monitoring of trading and trade processing are consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 4 in the context of SPP's activities with respect to TCRs. The Commission seeks comment with respect to this preliminary conclusion.
As discussed above, the auction process used for Reserve Transactions differs from the process used in the Real-Time Balancing and Day-Ahead markets.
SEF Core Principle 5 requires a SEF to establish and enforce rules that will allow it to obtain any necessary information to perform the functions described in section 733 of the Dodd-Frank Act, provide information to the Commission upon request, and have the capacity to carry-out such international information-sharing agreements as the Commission may require.
SEF Core Principle 6 requires SEFs that are trading facilities, as that term is defined in CEA section 1a(51), to establish position limits or position accountability for speculators, as is necessary and appropriate, for each swap traded on the SEF in order to reduce the potential threat of market manipulation or congestion, especially during trading in the delivery month.
The Commission notes that in the RTO-ISO Order, it did not impose position limits on the transactions covered by the Order. Instead, without making any determinations regarding the merits of the concerns regarding position limits raised in comments responding to that proposal, the Commission stated that it accepted the Requesting Parties' representations that the physical capability of their transmission grids limits the size of positions that any single market participant can take at a given time.
According to SPP's Exemption Application, each category of transactions for which SPP is requesting relief would be limited by the physical capability of the transmission grid and that the physical capability of its transmission grid limits the size of positions that any single market participant can take at a given time.
SEF Core Principle 7 requires a SEF to establish and enforce rules and procedures for ensuring the financial integrity of swaps entered on or through the facilities of the SEF, including the clearance and settlement of swaps pursuant to section 2(h)(1) of the CEA.
SPP represents that its risk management provisions provide it with appropriate tools and procedures to manage risk associated with operating its wholesale and related markets.
SPP represents that its credit policy provides the process by which SPP will periodically review and verify a market participant's risk management policies, practices, and procedures pertaining to its activities in SPP, as well as procedures for SPP to complete credit assessments. Successful completion of SPP's verification is required for a selected market participant's continued eligibility to participate in the SPP markets.
In addition, based on SPP's representations, it appears that SPP's policies and procedures include minimum financial standards and creditworthiness standards for their market participants.
As discussed in section V.C. above, FERC regulation 35.47(d) requires RTOs
According to SPP, in compliance with FERC Order No. 741's requirement to establish the ability to net and offset market obligations in bankruptcy, SPP is the counterparty to certain market transactions that are pooled within the Integrated Marketplace.
As noted in section V.D.4.g. above, SPP submitted a legal memorandum from outside counsel that states that SPP's counterparty arrangements will provide SPP with enforceable rights of set-off in the event of the market participant's bankruptcy.
Issues regarding risk management requirements, financial standards, and the use of a central counterparty are also addressed within the context of DCO Core Principle D. The Commission's preliminary conclusion that SPP's policies and procedures are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle D in the context of SPP's activities with respect to the Covered Transactions is relevant in considering SEF Core Principle 7.
Based on the foregoing analysis, including the representations and submissions of SPP, SPP's policies and procedures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 7 in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 8 requires that SEFs adopt rules to provide for the exercise of emergency authority.
SPP represents that its Tariff generally provides a wide range of authorities to address emergency situations, and that its emergency authority provisions are similar to those of the RTOs/ISOs covered by the RTO-ISO Order.
Just as the SEF's have rules in place that require them to take emergency actions to protect the markets by “including imposing or modifying position limits, imposing or modifying price limits, imposing or modifying intraday market restrictions, imposing special margin requirements, ordering the liquidation or transfer of open positions in any contract, ordering the fixing of a settlement price,” SPP represents that it may take actions to protect its markets. SPP states that if the SPP Market Monitor discovers any weaknesses or failures in market design that requires immediate corrective action, the SPP Market Monitor may request that the president of SPP authorize an immediate FERC filing to implement a corrective action while the appropriate SPP organizational group considers a solution, and that SPP has additional Tariff provisions to govern the calculation of market prices in the event of a failure of either the Day-Ahead Market or Real-Time Balancing Market systems, as well as calculation of prices in the event that a portion of the SPP system becomes isolated from the remainder of the market.
Based on the foregoing representations, it appears that SPP's policies and procedures regarding the exercise of emergency authority are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 8 in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 9 requires a SEF to make public timely information on price, trading volume, and other data on swaps to the extent prescribed by the Commission.
SPP represents that its Tariff requires the timely publication of trading information, and SPP is subject to FERC's Open Access Same-Time Information System (“OASIS”) regulations and publishes market operation and grid management data on the SPP OASIS.
Based on the foregoing representations, it appears that SPP's policies and procedures regarding the publication of trading information are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 9 in the context of SPP's activities with respect to the Covered Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 10 requires a SEF to maintain records of all activity relating to the business of the SEF, report such information to the Commission and to keep swaps information open to inspection by the Commission.
Based on SPP's representations and the discussion regarding DCO Core Principles J and K above,
SEF Core Principle 11 prevents a SEF from adopting any rule or taking any action that results in any unreasonable restraint of trade, or imposes any material anticompetitive burden, unless necessary or appropriate to achieve the purposes of the Act.
Based on SPP's representations and the discussion of DCO Core Principle N above,
Core Principle 12 requires a SEF to establish and enforce rules to minimize conflicts of interest and establish a process for resolving conflicts of interest.
SPP represents that it meets the requirements of FERC's Order No. 2000. Moreover, it represents that it has developed extensive standards of conduct and conflict of interest provisions for members of the Board of Directors and employees (including officers).
Based on SPP's representations and the discussion of DCO Core Principle P above,
SEF Core Principle 13 requires a SEF to have adequate financial, operational and managerial resources to discharge each responsibility of the SEF.
SPP represents that it has adopted provisions to ensure adequate financial, operational and managerial resources to
Based on SPP's representations and the discussion regarding DCO Core Principle B above,
SEF Core Principle 14 requires a SEF to establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk, through the development of appropriate controls and procedures, and automated systems, that are reliable and secure, and have adequate scalable capacity.
SPP represents that it has developed and adopted system safeguard controls and procedures to identify and minimize operational risk, including back-up facilities, emergencies and disaster.
For example, SPP represents that in order to comply with these requirements, it has computer systems that incorporate adequate business continuity and disaster recovery functionality.
Based on SPP's representations as well as the discussion regarding DCO Core Principle I above,
SEF Core Principle 15 requires that a SEF designate an individual as Chief Compliance Officer, with specific delineated duties.
SPP represents that it has a Chief Compliance Officer, who is responsible for overseeing compliance, internal audit and market monitoring.
Based on SPP's representations, it appears that SPP's practices are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 15 in the context of SPP's activities with respect to the Covered Transactions. The Commission
Pursuant to the authority provided by section 4(c)(6) of the CEA,
The particular categories of contracts, agreements and transactions to which the Proposed Exemption would apply correspond to the types of transactions for which relief was explicitly requested in the Exemption Application.
The scope of the Proposed Exemption is limited by two additional factors. First, it is restricted to agreements, contracts or transactions where all parties thereto are either: (1) Entities described in section 4(c)(3)(A) through (J) of the CEA;
Second, in order to be eligible for the exemption that would be provided by the Proposed Exemption, the agreement, contract or transaction also must be offered or sold pursuant to SPP's “Tariff” and the tariff must have been approved by FERC. This requirement reflects the range of the Commission's authority as set forth in section 4(c)(6)
Consistent with the range of the statutory authority explicitly provided by CEA section 4(c), the Proposed Exemption would extend the exemption to the agreements, contracts or transactions set forth therein and “any person or class of persons offering, entering into, rendering advice, or rendering other services with respect to” such transactions. In addition, for as long as the Proposed Exemption would remain in effect, SPP would be able to avail itself of the Proposed Exemption with respect to all three expressly-identified groups of products, regardless of whether or not SPP offers the particular product at the present time. That is, SPP would not be required to request future supplemental relief for a product that it does not currently offer, but that qualifies as one of the three types of transactions in the Proposed Exemption. SPP's Exemption Application requested an exemption of the scope provided and the Exemption Application was analyzed accordingly.
The Proposed Exemption indicates that, when a final order is issued, it would be made effective upon publication. The Proposed Exemption also contains two information-sharing conditions. First, the Proposed Exemption is expressly conditioned upon the continuation of information sharing arrangements between the Commission and FERC. The Commission notes that the CFTC and FERC have executed several MOUs since 2005, pursuant to which the agencies have shared information successfully. Most recently, the Commission and FERC signed an MOU on January 2, 2014 which provides for the sharing of information for use in analyzing market activities and protecting market integrity.
Finally, the Proposed Exemption expressly notes that it is based upon the representations made in the Exemption Application, including those representations with respect to compliance with FERC regulation 35.47. It is also based on supporting materials provided to the Commission by SPP and its counsel, including a legal memorandum that, in the Commission's sole discretion, provides the Commission with assurance that the netting arrangements contained in the approach selected by SPP to satisfy the obligations contained in FERC regulation 35.47(d) will, in fact, provide SPP with enforceable rights of setoff against any of its market participants under title 11 of the United States Code in the event of the bankruptcy of the market participant. Any material change or omission in the facts and circumstances pursuant to which the Proposed Exemption is granted might require the Commission to reconsider its finding that the exemption contained therein is appropriate and/or in the public interest. The Commission has also explicitly reserved the discretionary authority to suspend, terminate or otherwise modify or restrict the exemption provided. The reservation of these rights is consistent with prior Commission practice and is necessary to provide the Commission with the flexibility to address relevant facts or circumstances as they arise.
Upon due consideration and consistent with the determinations set forth above, the Commission hereby proposes to issue the following order (“Order”):
Pursuant to its authority under section 4(c)(6) of the Commodity Exchange Act (“CEA” or Act”) and in accordance with sections 4(c)(1) and (2) of the Act, the Commodity Futures Trading Commission (“CFTC” or “Commission”)
1. Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-related agreements, contracts, and transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4
2.
a. The agreement, contract or transaction is for the purchase and sale of one of the following electric energy-related products:
(1) “Transmission Congestion Rights” defined in paragraph 5(a) of this Order, except that the exemption shall only apply to such Transmission Congestion Rights where:
(a) Each Transmission Congestion Right is linked to, and the aggregate volume of Transmission Congestion Rights for any period of time is limited by, the physical capability (after accounting for counterflow) of the electric energy transmission system operated by SPP for such period;
(b) SPP serves as the market administrator for the market on which the Transmission Congestion Rights are transacted;
(c) Each party to the transaction is a member of SPP (or is SPP itself) and the transaction is executed on a market administered by SPP; and
(d) The transaction does not require any party to make or take physical delivery of electric energy.
(2) “Energy Transactions” as defined in paragraph 5(b) of this Order.
(3) “Operating Reserve Transactions” as defined in paragraph 5(c) of this Order.
b. Each party to the agreement, contract or transaction is:
(1) An “appropriate person,” as defined sections 4(c)(3)(A) through (J) of the CEA;
(2) an “eligible contract participant,” as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m); or
(3) a “person who actively participates in the generation, transmission, or distribution of electric energy,” as defined in paragraph 5(f) of this Order.
c. The agreement, contract or transaction is offered or sold pursuant to SPP's Tariff and that Tariff has been approved by the Federal Energy Regulatory Commission (“FERC”).
3.
4.
a. Information sharing: Information sharing arrangements between the Commission and FERC that are acceptable to the Commission continue to be in effect, and SPP's compliance with the Commission's requests through FERC to share, on an as-needed basis and in connection with an inquiry consistent with the CEA and Commission regulations, positional and transactional data within SPP's possession for products in SPP's markets that are related to markets that are subject to the Commission's jurisdiction, including any pertinent information concerning such data.
b. Notification of requests for information: Neither the Tariff nor any other governing documents of SPP shall include any requirement that SPP notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation.
5.
a. A “Transmission Congestion Right” is a transaction, however named, that entitles one party to receive, and obligates another party to pay, an amount based solely on the difference between the price for electric energy, established on an electric energy market administered by SPP, at a specified source (
b. “Energy Transactions” are transactions in a “Day-Ahead Market” or “Real-Time Balancing Market,” as those terms are defined in paragraphs 5(d) and 5(e) of this Order, for the purchase or sale of a specified quantity of electric energy at a specified location (including virtual bids and offers), where:
(1) The price of the electric energy is established at the time the transaction is executed;
(2) Performance occurs in the Real-Time Balancing Market by either:
(a) Delivery or receipt of the specified electric energy, or
(b) A cash payment or receipt at the price established in the Day-Ahead Market or Real-Time Balancing Market (as permitted by SPP in its Tariff); and
(3) The aggregate cleared volume of both physical and cash-settled energy transactions for any period of time is limited by the physical capability of the electric energy transmission system operated by SPP for that period of time.
c. “Operating Reserve Transactions” are transactions:
(1) In which SPP, for the benefit of load-serving entities and resources, purchases, through auction, the right, during a period of time as specified in SPP's Tariff, to require the seller of such right to operate electric energy facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of a specified quantity of electric energy into or from the electric energy transmission system operated by SPP with:
(a) Physical performance by the seller's facilities within a response time interval specified in SPP's Tariff (Reserve Transaction); or
(b) prompt physical performance by the seller's facilities (Area Control Error Regulation Transaction);
(2) For which the seller receives, in consideration, one or more of the following:
(a) Payment at the price established in SPP's Day-Ahead or Real-Time Balancing Market, as those terms are defined in paragraphs 5(d) and 5(e) of this Order, price for electric energy applicable whenever SPP exercises its right that electric energy be delivered (including “Demand Response,” as defined in paragraph 5(g) of this Order);
(b) Compensation for the opportunity cost of not supplying or consuming electric energy or other services during any period during which SPP requires that the seller not supply energy or other services;
(c) An upfront payment determined through the auction administered by SPP for this service;
(d) An additional amount indexed to the frequency, duration, or other attributes of physical performance as specified in SPP's Tariff; and
(3) In which the value, quantity, and specifications of such transactions for SPP for any period of time shall be limited to the physical capability of the electric energy transmission system operated by SPP for that period of time.
d. “Day-Ahead Market” means an electric energy market administered by SPP on which the price of electric energy at a specified location is determined, in accordance with SPP's Tariff, for specified time periods, none of which is later than the second operating day following the day on which the Day Ahead Market clears.
e. “Real-Time Balancing Market” means an electric energy market administered by SPP on which the price of electric energy at a specified location is determined, in accordance with SPP's Tariff, for specified time periods within the same 24-hour period.
f. “Person who actively participates in the generation, transmission, or distribution of electric energy” means a person that is in the business of: (1) Generating, transmitting, or distributing electric energy; or (2) providing electric energy services that are necessary to support the reliable operation of the transmission system.
g. “Demand Response” means the right of SPP to require that certain sellers of such rights curtail consumption of electric energy from the
h. “SPP” means Southwest Power Pool, Inc. or any successor in interest to Southwest Power Pool.
i. “Tariff.” Reference to a SPP “Tariff” includes a tariff, rate schedule or protocol.
j. “Exemption Application” means the application for an exemptive order under 4(c)(6) of the CEA filed by SPP on October 17, 2013, as amended August 1, 2014.
6.
7.
This Order is based upon the representations made in the Exemption Application for an exemptive order under 4(c) of the CEA filed by SPP,
The Regulatory Flexibility Act (“RFA”) requires that agencies consider whether the Proposed Exemption will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
Commission staff also performed an independent RFA analysis based on Subsector 221 of Sector 22 (utilities companies) of the SBA which defines any small utility corporation as one that does not have more than 250 employees.
Accordingly, the Commission does not expect the Proposed Exemption to have a significant impact on a substantial number of entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the Proposed Exemption would not have a significant economic impact on a substantial number of small entities. The Commission invites the public to comment on whether the entities covered by the Proposed Exemption should be considered small entities for purposes of the RFA, and, if so, whether there is a significant impact on a substantial number of entities.
The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Section 15(a) of the CEA
As discussed above, in response to an Exemption Application from SPP, the Commission is proposing to exempt certain transactions from the provisions of the CEA and Commission regulations with the exception of those prohibiting fraud and manipulation (
More specifically, the Commission is proposing to exempt from most provisions of the CEA certain “transmission congestion rights,” “energy transactions,” and “operating reserve transactions,” as those terms are defined in the Proposed Exemption (collectively referred to as Covered Transactions), if such transactions are offered or entered into pursuant to a Tariff under which SPP operates that has been approved or permitted to take effect by FERC. The Proposed Exemption would extend to a person who is: (1) An “appropriate person,” as defined in CEA sections 4(c)(3)(A) through (J); (2) an “eligible contract participant,” as defined in CEA section 1a(18)(A) and in Commission regulation 1.3(m); or (3) a person who actively participates in the generation, transmission, or distribution of electric energy.
In the discussion that follows, the Commission considers the costs and benefits of the Proposed Exemption to the public and market participants generally, including the costs and benefits of the conditions precedent that must be satisfied before SPP may claim the exemption.
The Commission's proposed baseline for consideration of the costs and benefits of this Proposed Exemption are the costs and benefits that the public and market participants (including SPP) would experience in the absence of this proposed regulatory action. In other words, the proposed baseline is an alternative situation in which the Commission takes no action and exercises jurisdiction, meaning that the transactions that are the subject of this Exemption Application would be required to comply with all of the CEA and Commission regulations, as applicable. In such a scenario, the public and market participants would experience the full benefits and costs related to the CEA and Commission regulations, but as discussed in detail above, the transactions would still be subject to the congruent regulatory regime of FERC.
The Commission also considers the regulatory landscape as it exists outside the context of the Dodd-Frank Act's enactment. In this instance, it also is important to highlight SPP's representation that each of the transactions for which an exemption is requested is already subject to a long-standing, comprehensive regulatory framework for the offer and sale of such transactions established by FERC.
In the discussion that follows, where reasonably feasible, the Commission endeavors to estimate quantifiable dollar costs of the Proposed Exemption. The benefits and costs of the Proposed Exemption, however, are not presently susceptible to meaningful quantification. Most of the costs arise from limitations on the scope of the Proposed Exemption, and many of the benefits tied to those limitations arise from avoiding defaults and their implications that are clearly large in magnitude, but impracticable to estimate. Where it is unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms.
The Proposed Exemption is exemptive and would provide “appropriate persons” engaging in the Covered Transactions relief from certain of the requirements of the CEA and attendant Commission regulations. As with any exemptive rule or order, the Proposed Exemption is permissive, meaning that SPP was not required to request it and is not required to rely on it. Accordingly, the Commission assumes that SPP would rely on the Proposed Exemption only if the anticipated benefits to SPP outweigh the costs of the exemption. Here, the Proposed Exemption identifies certain conditions to the grant of the Proposed Exemption. The Commission is of the view that, as a result of the conditions, SPP, market participants and the public would experience minimal, if any, ongoing costs as a result of these conditions because, as SPP certifies pursuant to CFTC Rule 140.99(c)(3)(ii), the attendant conditions are substantially similar to requirements that SPP and its market participants
The condition that all parties to the agreements, contracts or transactions that are covered by the Proposed Exemption must be (1) an “appropriate person,” as defined in sections 4(c)(3)(A) through (J) of the CEA; (2) an “eligible contract participant,” as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m); or (3) a “person who actively participates in the generation, transmission, or distribution of electric energy”
The second condition is that the Covered Transactions must be offered or sold pursuant to SPP's Tariff—which has been approved or permitted to take effect by FERC. This is a statutory requirement for the exemption set forth in CEA section 4(c)(6) and therefore is not a cost attributable to an act of discretion by the Commission.
As discussed above, FERC imposes on SPP, and its market monitor, various information management requirements.
Finally, the condition that information sharing arrangements that are satisfactory to the Commission between the Commission and FERC must be in full force and effect is not a cost to SPP or to other members of the public and has been an inter-agency norm since 2005.
In proposing this exemption, the Commission is required by section 4(c)(6) to ensure that it is consistent with the public interest. In much the same way, CEA section 15(a) requires that the Commission consider the benefits to the public of its action. In meeting its public interest obligations under both 4(c)(6) and 15(a), the Commission in sections V.B.1., V.D., and V.E. proposes a detailed consideration of the nature of the transactions and FERC's regulatory regime, including whether the protections provided by that regime is, at a minimum, congruent with the Commission's oversight of DCOs and SEFs.
This exercise is not rote; rather, in proposing that this exemption is in the public interest, the Commission's comprehensive action benefits the public and market participants in several substantial ways, as discussed below. First, the parameters for the Covered Transactions set forth in the Proposed Exemption limit the financial risk that may impact the markets. The mitigation of such risk inures to the benefit of SPP, market participants and the public, especially SPP's members and electric energy ratepayers.
The condition that only “appropriate persons” may enter the Covered Transactions benefits the public and the entities that fall under the “appropriate persons” definition themselves, by ensuring that (1) only persons with resources sufficient to understand and manage the risks of the transactions are permitted to engage in the same, and (2) persons without such resources do not impose credit costs on other participants (and the ratepayers for such other participants). Further, the condition requiring that the Covered Transactions only be offered or sold pursuant to a FERC-approved tariff benefits the public by, for example, ensuring that the Covered Transactions are subject to a regulatory regime that is focused on the physical provision of reliable electric energy, and also has credit requirements that are designed to achieve risk management goals congruent with the regulatory objectives of the Commission's DCO and SEF Core Principles. Absent these and other similar limitations on participant- and financial-eligibility, the integrity of the markets at issue could be compromised and members and ratepayers left unprotected from potentially significant losses resulting from purely financial, speculative activity.
Finally, the Commission's retention of its authority to redress any fraud or manipulation in connection with the Covered Transactions protects market participants and the public generally, as well as the financial markets for electric energy products. For example, the Proposed Exemption is conditioned upon effective information sharing arrangements between the FERC and the Commission being in place. Through such an arrangement, the Commission expects that it will be able to request information necessary to examine whether activity on SPP's markets is adversely affecting the Commission-regulated markets. Further, the Proposed Exemption is conditioned upon the Commission's ability to obtain certain data within SPP's possession from SPP. Through this condition, the Commission expects that it will be able to continue discharging its regulatory duties under the CEA. Further, the condition that SPP may not, in the future, maintain any Tariff provisions that would require SPP to notify members prior to providing the Commission with information will help maximize the effectiveness of the Commission's enforcement program.
The Commission considered alternatives to the proposed rulemaking. For instance, the Commission could have chosen: (i) Not to propose an exemption or (ii), as SPP requested, to provide relief for “the purchase and sale of a product or service that is directly related to, and a logical outgrowth of, any of SPP's core functions as an RTO . . . and all services related thereto.” Regarding this latter request, the Commission understands the Exemption Application as requesting relief for transactions not yet in existence. In this exemption, the Commission proposes what it considers a measured approach—in terms of the implicated costs and benefits of the exemption—given its current understanding of the Covered Transactions.
Regarding the first alternative, the Commission considered that Congress, in the Dodd-Frank Act, required the Commission to exempt certain contracts, agreements or transactions from duties otherwise required by statute or Commission regulation by adding a new section that requires the Commission to exempt from its regulatory oversight agreements, contracts, or transactions traded pursuant to an RTO tariff that has been approved or permitted to take effect by FERC, where such exemption was in the public interest and consistent with the purposes of the CEA. Having concluded that the Proposed Exemption meets those tests, the Commission proposes that a no exemption alternative would be inconsistent with Congressional intent and contrary to the public interest. At the same time, however, the Commission believes it would also be inappropriate to adopt the second alternative.
The second alternative would extend the Proposed Exemption to future products that are “logical outgrowths” of the Covered Transactions. The Commission proposes that such alternative would be contrary to the Commission's obligation under section 4(c) of the Act. As noted above, the authority to issue an exemption from the CEA provided by section 4(c) of the Act may not be automatically or mechanically exercised. Rather, the Commission is required to affirmatively determine,
The Commission is concerned that such an open-ended definition could present risks beyond those contemplated. At the same time, the Commission believes that any new transactions that fall within the Covered Transactions, which are explicitly defined in the Proposed Exemption, and any modifications to existing transactions that do not alter the Covered Transactions' characteristics in a way that would cause them to fall outside those definitions, that are offered by SPP pursuant to a FERC-approved Tariff, are intended to be included within the Proposed Exemption. This provides a benefit in that no supplemental relief for such products would be required, which is a cost mitigating efficiency gain for SPP. Moreover, unidentified transactions might include novel features or have market implications or risks that are beyond evaluation at the present time, and are not present in the specified transactions.
In proposing the exemption as it did, the Commission endeavored to provide relief that was in the public interest. A key component of that consideration is the assessment of how the Proposed Exemption protects market participants and the public. As discussed above, market participants and the public are protected by the existing regulatory structure that includes congruent regulatory goals, and by the four conditions placed upon the proposed relief by requiring,
In this Proposed Exemption, the Commission considered its effect on the efficiency, competitiveness, and financial integrity of the markets subject to the Commission's jurisdiction. As means of increasing competition and efficiency, the Commission recognizes that entities falling under the “appropriate persons” definition will benefit from increased competition among RTOs benefiting from this type of exemption with the addition of SPP to the existing ones and will be able to engage in the Covered Transactions in a more efficient manner. Further, the Commission's retention of its full enforcement authority will help ensure that any misconduct in connection with the exempted transactions does not jeopardize the financial integrity of the markets under the Commission's jurisdiction.
As discussed above in section V.B.4, with respect to TCRs and Operating Reserve Transactions, these transactions do not appear to directly impact transactions taking place on Commission-regulated markets—they are not used for price discovery and are not used as settlement prices for other transactions in Commission-regulated markets.
With respect to Energy Transactions, these transactions have a relationship to Commission-regulated markets because they can serve as a source of settlement prices for other transactions subject to the Commission's jurisdiction. Granting the Proposed Exemption, however, does not mean that these transactions will be unregulated. To the contrary, as explained in more detail above, SPP has a market monitoring system in place to detect and deter manipulation that takes place on its markets. Further, as noted above, the Commission retains all of its anti-fraud and anti-manipulation authority as a condition of the Proposed Exemption.
As with the other areas of cost-benefit consideration, the Commission's evaluation of sound risk management practices occurs throughout this release, notably in sections V.D.4.a. and V.E.7.a. which consider SPP's risk management policies and procedures, and the related requirements of FERC (in particular, FERC Order 741 on Credit Policies), in light of the Commission's risk management requirements for DCOs and SEFs.
In addition, the Commission believes that the Proposed Exemption will allow market participants who are eligible for this exemption to more effectively manage their operational risk arising from the non-storable nature of electric energy and fluctuating end-user demand for it.
The Commission proposes that because these transactions are part of, and inextricably linked to, the organized wholesale, physical electric energy markets that are subject to regulation and oversight of FERC, the Commission's Proposed Exemption, with its attendant conditions, requirements, and limitations, is in the public interest. The Commission recognizes that the Proposed Exemption supports eligible market participants' supply of affordable and reliable electric energy to the public by exempting their use of the Covered Transactions from CEA.
The Commission invites public comment on its cost-benefit considerations and dollar cost estimates, including the consideration of reasonable alternatives. Commenters are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.
The Commission requests comment on all aspects of its Proposed Exemption. In addition, the Commission specifically requests comment on the specific provisions and issues highlighted in the discussion above and on the issues presented in this section. For each comment submitted, please provide a detailed rationale supporting the response.
1. Has the Commission used the appropriate standard in analyzing whether the Proposed Exemption is in the public interest?
2. Is the scope set forth for the Proposed Exemption sufficient to allow for innovation? Why or why not? If not, how should the scope be modified to allow for innovation without exempting products that may be materially different from those reviewed by the Commission? Should the Commission exempt such products without considering whether such exemption is in the public interest? In answering this question, please consider that SPP may separately petition the Commission for an amendment of any final order granted in this matter. In addition, please consider that the Commission has, to a certain extent, addressed these innovation questions in the RTO-ISO Order.
3. Should the Proposed Exemption be conditioned upon the requirement that SPP cooperate with the Commission in its conduct of special calls/further requests for information with respect to contracts, agreements or transactions that are, or are related to, the contracts, agreements, or transactions that are the subject of the Proposed Exemption?
4. What is the basis for the conclusion that SPP does, or does not, provide to the public sufficient timely information on price, trading volume, and other data with respect to the markets for the contracts, agreements and transactions that are the subject of the Proposed Exemption? What Tariff provisions, if any, requires it to do so or precludes it from doing so?
5. What is the basis for the conclusion that the Proposed Exemption will, or will not, have any material adverse effect on the Commission's ability to discharge its regulatory duties under the CEA, or on any contract market's ability to discharge its self-regulatory duties under the CEA?
6. What are the bases for the conclusions that SPP's Tariff, practices, and procedures do, or do not, appropriately address the regulatory goals of each of the DCO and SEF Core Principles?
7. What factors support, or detract from, the Commission's preliminary conclusion that TCRs, Energy Transactions, and Operating Reserve Transactions are not susceptible to manipulation for the reasons stated above? What is the basis for the conclusion that market participants can, or cannot, use Energy Transactions to manipulate electric energy prices without detection by the SPP Market Monitor?
8. What is the basis for the conclusion that SPP has, or has not, satisfied applicable market monitoring requirements with respect to TCRs, Energy Transactions, and Operating Reserve Transactions? What is the basis for the conclusion that the record-keeping functions performed by SPP is, or is not, appropriate to address any concerns raised by the market monitoring process? What is the basis for the conclusion that the market monitoring functions performed by SPP and the SPP Market Monitor do, or do not, provide adequate safeguards to prevent the manipulation of SPP's markets?
9. What are the bases for the conclusions that SPP does, or does not, adequately satisfy the SEF requirements for (a) recordkeeping and reporting, (b) preventing restraints on trade or imposing any material anticompetitive burden, (c) minimizing conflicts of interest, (d) providing adequate financial resources, (e) establishing system safeguards and (f) designating a CCO? Specifically, do the procedures and principles in place allow SPP to meet the requirements of SEF core principles 10-15?
10. What is the basis for the conclusion that SPP's eligibility requirements for participants are, or are not, appropriate to ensure that market participants can adequately bear the risks associated with the Participants markets?
11. What is the basis for the conclusion that SPP does, or does not, have adequate rules in place to allow it to deal with emergency situations as they arise? What deficiencies, if any, are there with respect to SPP's emergency procedures that would prevent SPP from taking necessary action to address sudden market problems?
12. What would be the basis for the conclusion that SPP should not receive relief that is substantially similar to the relief the Commission granted other RTOs and ISOs in the RTO-ISO Order?
13. The Commission invites comment on its consideration of the costs and benefits of the Proposed Exemption, including the costs of any information requirements imposed therein. The Commission also seeks comment on the costs and benefits of this Proposed Exemption, including, but not limited to, those costs and benefits specified within this proposal. Commenters are also are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.
On this matter, Chairman Massad and Commissioners Wetjen, Bowen, and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
| 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 |