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Federal Energy Regulatory Commission, Energy.
Final rule.
In this Final Rule, the Federal Energy Regulatory Commission revises its regulations governing interstate natural gas pipelines to prohibit multiple affiliates of the same entity from bidding in an open season for pipeline capacity in which the pipeline may allocate capacity on a
1. In this Final Rule, the Commission revises its Part 284 regulations governing interstate natural gas pipelines to prohibit multiple affiliates of the same entity from bidding in an open season for pipeline capacity in which the pipeline may allocate capacity on a
2. The Commission's policy under the Natural Gas Act (NGA)
3. Some pipelines hold open seasons to alert shippers to the availability of capacity on the pipeline and allow the shippers to bid for available capacity. The pipeline's open season process is an open and transparent procedure that is set forth in the pipeline's tariff. The pipeline notifies shippers of the availability of capacity by posting an open season notice on its EBB and/or Web site for the available capacity. During the open season, the Commission requires pipelines to sell all available capacity to shippers willing to pay the pipeline's maximum recourse rate.
4. NPV is a method for awarding capacity from the bids received during the open season.
5. In the event that there is not sufficient capacity to meet all equal maximum bids, pipelines apply a tiebreaker mechanism. One such mechanism is the
6. On April 7, 2011, the Commission issued the NOPR, in which it proposed to add a new section 284.15 to its regulations prohibiting multiple affiliates of the same entity from bidding in an open season for pipeline capacity conducted by any interstate pipeline providing service under subparts B and G of Part 284 of the Commission's regulations in which the pipeline may allocate capacity on a
7. The Commission explained that some entities had developed and applied a strategy of bidding with multiple affiliates in open seasons for available capacity in order to defeat the
8. Comments on the NOPR were due on May 31, 2011. Twelve parties filed comments.
9. In the NOPR, the Commission explained that it has come to its attention that some entities have developed and applied a strategy of bidding with multiple affiliates in open seasons for available capacity in order to defeat the
10. CPC contends that the proposed prohibition on multiple affiliate bidding is unnecessary because the Commission has clearly articulated its policy and there is an enforcement mechanism in place to ensure compliance. CPC explains that if multiple affiliates are awarded capacity to the detriment of a third party, that third party may contact the Commission's enforcement staff. All other commenters support adoption of a regulation clarifying the Commission's rules concerning affiliate participation
11. In the Commission's view, amendments to our existing regulations are necessary to prevent an entity from using multiple affiliates to secure a larger allocation of capacity than it could acquire by itself. Under conditions where the available capacity is limited and the value of the capacity is high, shippers are strongly motivated to obtain as much of that valuable capacity as possible in order to take advantage of the opportunity for profit. Where the available capacity is finite, the price is capped by the pipeline's maximum tariff rate, and the tiebreaker is a
12. While the Commission has recently addressed the issue of multiple affiliate bidding, the Commission believes that further regulatory action is necessary. In the Commission's view, amendments to the existing regulations are needed to provide clear notice to parties participating in open seasons for interstate pipeline capacity that multiple affiliate bidding is prohibited, unless a participating affiliate has its own independent business reason for submitting a bid. Clarification of the prohibited behavior should facilitate compliance with the prohibition. Entities may contact the Commission's enforcement staff in the case of a possible violation.
13. In the NOPR, the Commission proposed to revise its regulations governing interstate natural gas pipelines to prohibit multiple affiliates of the same entity from bidding in an open season for pipeline capacity in which the pipeline may allocate capacity on a
14. The Commission recognized that not all multiple affiliate bidding is used to defeat a
15. Parties generally support the Commission's proposed prohibition on multiple affiliate bidding. These parties agree that the Commission's proposal should provide clarity to its policies and help to prevent anticompetitive gaming of the
16. Certain parties express concerns over the scope and specific elements of the proposed prohibition. CPC argues that the prohibition is not reasonably tailored to meet the Commission's goals because the rule would affect virtually every open season, whether or not capacity is constrained or whether or not any other prospective shipper is denied access to capacity. Some parties assert that the Commission should provide more detailed, objective criteria as to what constitutes an “independent business reason” that would allow affiliated entities to bid on constrained capacity, or create safe harbors or a bright-line test for what constitutes an “independent business reason.” For example, NGSA suggests that criteria might include whether the prospective affiliated shippers each had separate contracts to purchase or supply gas; whether the capacity was bid for in conjunction with a distinct retail provider obligation, internal use, or specific new supply project; or whether affiliates bidding operate out of different geographic locations or countries.
17. AGA argues that the proposed rule would burden participation in pipeline open seasons because every market participant with affiliates would be required to document an independent business reason each time it bids. AGA states that the potential number of affiliates could be expansive, and that in many cases a market participant would have no way of knowing whether some of its affiliates intended to or did submit a bid in the same pipeline season. AGA suggests that the Commission modify proposed section 284.15(a) to focus narrowly on the conduct that is considered manipulative by prohibiting participation in an open season “for the purpose of obtaining a larger allocation of capacity for one affiliate than that affiliate could acquire for itself,” and not tying the prohibition to the absence of an independent business reason for participation in the open season.
18. AGA further requests clarification that entities that operate in multiple jurisdictions either as affiliated entities or a single corporate entity with multiple operative divisions may submit multiple bids on behalf of two or more affiliates or divisions where each affiliate or division has its own need for the capacity. SCS requests clarification that its practice of acting as agent for its affiliates by submitting one bid for the total capacity needed by its affiliates would not trigger the proposed prohibition on multiple affiliate bidding. INGAA requests that the Commission clarify that pipelines are not required to determine whether open season bidders or releasing shippers are affiliated or whether bidders have independent business reasons for their bids.
19. APGA suggests that, if affiliates of the same entity participate in an open season for pipeline capacity, each be required to identify itself as such in its bid and that any award of open season
20. Finally, DTE Energy argues that the Commission should exempt traditional gas and electric utilities from the definition of “affiliate” used in the NOPR, as state public service commission review of these utilities' activities provides sufficient protection against manipulative practices.
21. In this Final Rule, the Commission adopts section 284.15(a) as proposed in the NOPR. The Commission finds that it is appropriate to prohibit multiple affiliates of the same entity from participating in an open season for pipeline capacity in which the pipeline may allocate capacity on a
22. As recognized in the NOPR, not all multiple affiliate bidding is used to defeat a
23. Various commenters request further clarification of what constitutes an independent business reason. As the Commission explained in the NOPR, it is impossible to describe in advance every situation that demonstrates an independent business reason. However, our intent in permitting bidding by multiple affiliates where each has its own independent business reason for bidding is to allow each affiliate to acquire capacity which will facilitate or enhance its ability to provide service of value to its own customers or otherwise help accomplish its own business goals. The phrase “independent business reason” should be interpreted and applied in specific situations consistent with that intent.
24. The scenarios described in P 22 above illustrate situations where each affiliate or business unit has an independent business reason to participate in an open season, because each is seeking pipeline capacity in order to transport natural gas to its own sales customers. Commenters have suggested various other scenarios in which an affiliate or business unit may use awarded capacity to accomplish its own business objectives and thus have an independent business reason for participating in an open season. For example, an affiliate may use natural gas to operate an industrial plant, refinery, or electric generation facility, and seek pipeline capacity to transport natural gas to that facility.
25. AGA argues that the proposed rule would burden participation in pipeline open seasons because each market participant would be required to document an independent business reason each time it bids and would have no way of knowing whether some of its affiliates submitted a bid. We disagree. First, the rule requires an affiliate to do no more than any reasonably prudent company would do when considering whether to bid in an open season for pipeline capacity. Before submitting a bid, the affiliate must decide whether and how much of the subject capacity it needs in order to accomplish its own business objectives, and it should maintain some record of the basis for its determination. The rule does not include any specific documentation requirement. Second, each affiliate only need concern itself with whether it, individually, has an independent business reason for bidding. The rule does not require that an entity coordinate with its affiliates to establish how its independent business reason differs from the business reasons of the other affiliates. In fact, not coordinating with affiliates would help to avoid the appearance of multiple affiliate bidding behavior. Similarly, if state public service commission review prevents gas and electric utilities from acquiring gas transportation for purposes not related to serving customers, as DTE Energy asserts, then it should not be burdensome for these entities to establish an independent business purpose. We therefore do not find it necessary to modify proposed section 284.15(a) or the proposed definition of “affiliate.”
26. We do not find it necessary to require that each affiliate identify itself as such and that any award of open season capacity note the affiliation. In order for multiple affiliates of the same entity to participate in an open season for pipeline capacity in which the pipeline may allocate capacity on a
27. The Commission also proposed that if more than one affiliate of the same entity participates in such an open season, then none of those affiliates may
28. Parties generally argue that the capacity release prohibition, as drafted, is overbroad and would have a chilling effect on the capacity release markets. For example, AGA argues that where an affiliate complies with section 284.15(a) and legitimately obtains capacity in an open season with a
29. Parties argue that, if the prohibition on capacity release is adopted, various clarifications are required. For example, AGA argues that the Commission should clarify that the prohibition on capacity release only applies where the affiliate cannot establish an independent business reason for bidding, and that, if an entity with multiple affiliates acquires capacity in an open season with a
30. Parties also express concern that seeking waiver of the capacity release prohibition would be overly burdensome.
31. In light of the comments received, the Commission has reconsidered its proposal and has decided not to adopt the proposed prohibition on capacity release. The prohibition on capacity release, proposed as section 284.15(b) in the NOPR, was intended to provide an additional deterrent to affiliates bidding for capacity for which they have no independent use. However, any behavior that the Commission intended to fall under the capacity release prohibition is covered by the prohibition on multiple affiliate bidding in proposed section 284.15(a). Therefore, the Commission believes that the prohibition on multiple affiliate bidding in proposed section 284.15(a) is sufficient to prohibit the subject conduct without the additional capacity release prohibition.
32. Furthermore, we appreciate commenters' concern that the capacity release prohibition could have a chilling effect on affiliates' participation in the capacity release markets. The Commission adopted the capacity release program in order to promote efficient use of firm pipeline capacity throughout the year.
33. Upon further consideration, the Commission has determined that an affiliate who legitimately obtains capacity in an open season for its own independent business purposes should be permitted to release that capacity to any entity under the normal capacity release rules applicable to all other shippers. This will enable affiliates to obtain the same benefits from capacity release as other shippers. We note, however, that the Commission may consider what an entity does with its awarded capacity, such as subsequently releasing the capacity to an affiliate on a long-term basis, as a factor in the determination of whether the entity in fact had an independent business reason to obtain the capacity.
34. The Commission will therefore promulgate the Final Rule without the prohibition on capacity release. This Final Rule, as amended, should prevent anticompetitive gaming of the
35. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.
36. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
37. The Regulatory Flexibility Act of 1980 (RFA)
38. This Final Rule should have no significant negative impact on those entities, be they large or small, subject to the Commission's regulatory jurisdiction under the NGA. Most companies to which the Final Rule applies do not fall within the RFA's definition of small entities. In addition, this Final Rule is only triggered if more than one affiliate of the same entity participates in an open season for pipeline capacity in which the pipeline may allocate capacity on a
39. In addition to publishing the full text of this document in the
40. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
41. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-(866) 208-3676) or email at
42. These regulations are effective December 23, 2011. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.
Continental shelf, Natural gas, Reporting and recordkeeping requirements.
By the Commission. Commissioner Spitzer is not participating.
In consideration of the foregoing, the Commission amends part 284, Chapter I, Title 18, Code of Federal Regulations, as follows:
15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352; 43 U.S.C. 1331-1356.
(a) Multiple affiliates of the same entity may not participate in an open season for pipeline capacity conducted by any interstate pipeline providing service under subparts B and G of this part, in which the pipeline may allocate capacity on a
(b) For purposes of this section, an affiliate is any person that satisfies the definition of affiliate in § 358.3(a)(1) and (3) of this chapter with respect to another entity participating in an open season subject to paragraph (a) of this section.
Office of the Assistant Secretary of Housing—Federal Housing Commissioner, HUD.
Final rule.
On July 14, 2011, HUD published a proposed rule to update HUD's regulations to conform to the statutory requirement that appraisers must be certified, rather than licensed, by a state appraisal licensing board in order to appear on the FHA Appraiser Roster. This requirement was established by the Housing and Economic Recovery Act of 2008. Although current HUD practice is in compliance with the statutory mandate, the regulations reflect outdated prior policy of permitting state-licensed appraisers to be listed on the FHA Appraiser Roster. In addition, HUD proposed updating the FHA Appraiser Roster regulations by replacing the obsolete references to the Credit Alert Interactive Voice Response System (CAIVRS) with references to its successor, the online-based Credit Alert Verification Reporting System. This final rule follows the publication of the July 14, 2011, proposed rule. In this final rule, HUD is adopting the proposed rule without change. HUD did not receive any public comments on the proposed rule.
Karin Hill, Director, Office of Single Family Program Development, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9278, Washington, DC 20410-8000; telephone number (202) 708-2121 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Relay Service at 1 (800) 877-8339.
On July 14, 2011, HUD published a proposed rule in the
Under HUD's current regulation in 24 CFR 200.202(b), an applicant who wishes to be included on the FHA Appraiser Roster must, among other things, be a state-licensed or state-certified appraiser. Section 1404 of the HERA amended section 202 of the National Housing Act (12 U.S.C. 1708) to mandate that all appraisers chosen or approved to conduct appraisals of properties that will be security for FHA-insured mortgages must be “certified”: (1) By the state in which the property to be appraised is located, or by a nationally recognized professional appraisal organization;
In order to comply with HERA's requirements governing who qualifies as an FHA-approved appraiser, and in order to implement this change in appraiser eligibility requirements in a manner that was not disruptive to the FHA mortgage lending process, ML 2008-39, issued by FHA on December 17, 2008, provided a deadline of October 1, 2009, for all FHA appraisers on the Appraisal Roster to become state-certified and indicated that FHA had ceased to accept applications by state-licensed appraisers on October 1, 2008, in order to comply with HERA.
In addition, HERA provides that appraisers may either be state-certified or certified by a “nationally recognized professional appraisal organization” in order to appear on the Roster. However, in the proposed rule, HUD stated that in order to prevent disruption and to ensure efficient processing of mortgage insurance, HUD will accept only state certification and not the certification of a “nationally recognized professional appraisal organization.” HUD determined that state certification sufficiently accomplishes the statutory purpose of ensuring higher quality appraisals.
HUD took the opportunity in the proposed rule to propose the elimination references to the Credit Alert Interactive Voice Response System (CAIVRS). On July 11, 2008, HUD issued ML 2008-18, stating that HUD was discontinuing telephone access to CAIVRS because the hardware supporting the telephone access was obsolete and could no longer be repaired or maintained. Access to CAIVRS is now available solely through the Internet, and CAIVRS is now known as the Credit Alert Verification Reporting System, although the acronym remains the same.
This final rule follows publication of the July 14, 2011, proposed rule. The proposed rule provided for a 60-day public comment period. The public comment period for the proposed rule closed on September 12, 2011, and HUD did not receive any public comments. Accordingly, HUD is adopting the proposed rule without change.
In order to make the Appraiser Roster regulations consistent with current statute, this final rule removes all references to state licensing and state-licensed appraisers from the regulations in § 200.202 and § 200.204. This final rule also eliminates the reference to the Credit Alert Interactive Voice Response System in § 200.202. Because the Credit Alert Interactive Voice Response System no longer exists, the phrase has been replaced with “Credit Alert Verification Reporting System,” the new appraiser alert system put in place by ML 2008-18. Interested readers are referred to the preamble of the July 14, 2011, proposed rule, found at 76 FR 41441, for additional background information.
The information collection requirements for this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2502-0538. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule would not add any new regulatory burdens on FHA-approved appraisers or applicants for FHA approval. HERA requires that an appraiser be state-certified to be approved by FHA to be on the Appraiser Roster. HUD ceased accepting applications from state-licensed appraisers on October 1, 2008, and all appraisers already on the Appraiser Roster must have become state-certified by October 1, 2009, to remain on the Appraiser Roster. This final rule will not create new costs for small entities of appraisers or of lenders, because the rule does not impose any new requirements on appraisers. In addition, FHA's Appraiser Roster pertains solely to individuals, not to entities. Individual appraisers must apply to be on the FHA Appraiser Roster. Therefore, the undersigned certifies that this rule will not have a significant impact on a substantial number of small entities.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule will not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and Tribal governments, and on the private sector. This rule does not impose any federal mandates on any state, local, or Tribal governments, or on the private sector, within the meaning of UMRA.
This final rule does not direct, provide for assistance or loan and
The Catalogue of Federal Domestic Assistance Number for the principal FHA single-family mortgage insurance program is 14.117.
Administrative practice and procedure, Claims, Equal employment opportunity, Fair housing, Housing standards, Lead poisoning, Loan programs—housing and community development, Mortgage insurance, Organization and functions (Government agencies), Penalties, Reporting and recordkeeping requirements, Social Security, Unemployment compensation, Wages.
Accordingly, for the reasons stated in the preamble, 24 CFR part 200 is amended to read as follows:
12 U.S.C. 1702-1715-z-21; 42 U.S.C. 3535(d).
(b) * * *
(1) You must be a state-certified appraiser with credentials that complied with the applicable certification criteria established by the Appraiser Qualification Board (AQB) of the Appraisal Foundation and in effect at the time the certification was awarded by the issuing jurisdiction; and
(2) * * *
(iii) HUD's Credit Alert Verification Reporting System.
(a) * * *
(1) * * *
(ii) Losing standing as a state-certified appraiser due to disciplinary action in any state in which the appraiser is certified;
(c) * * *
(1)
(2)
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Illinois Central Railroad Drawbridge across the Upper Mississippi River, mile 579.9, at Dubuque, Iowa. The deviation is necessary to allow the bridge owner time to perform preventive maintenance that is essential to the continued safe operation of the drawbridge. Maintenance is scheduled in the winter when there is less impact on navigation; instead of scheduling work in the summer, when river traffic increases. This deviation allows the bridge to open on signal if at least 24-hours advance notice is given.
This deviation is effective from 12:01 a.m., December 19, 2011 to 7 a.m., February 27, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-1039 and are available online by going to
If you have questions on this rule, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone (314) 269-2378, email
The Chicago, Central & Pacific Railroad requested a temporary deviation for the Illinois Central Railroad Drawbridge, across the Upper Mississippi River, mile 579.9, at Dubuque, Iowa to open on signal if at least 24-hours advance notice is given for 70 days from 12:01 a.m., December 19, 2011 to 7 a.m., February 27, 2012 to allow the bridge owner time for preventive maintenance. The Rock Illinois Central Railroad Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that the drawbridge shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.
There are no alternate routes for vessels transiting this section of the Upper Mississippi River.
Winter conditions on the Upper Mississippi River coupled with the closure of Army Corps of Engineer's Lock No 16 (Mile 457.2 UMR), Lock No. 17 (Mile 437.1 UMR) and Lock No. 18 (Mile 410.5 UMR) until 7:30 p.m., February 28, 2012 will preclude any significant navigation demands for a drawspan opening.
The Illinois Central Railroad Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 19.9 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. The drawbridge will open if
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the new Chelsea Street Bridge across the Chelsea River, mile 1.2, between Chelsea and East Boston, Massachusetts. The recently installed new vertical lift bridge span will undergo testing for three weeks. This deviation requires a four hour advance notice for bridge openings during the lift span test period.
This deviation is effective from 7 a.m. on November 12, 2011 through 11 a.m. on December 3, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-1050 and are available online at
If you have questions on this rule, call or email Mr. John McDonald, Project Officer, First Coast Guard District, telephone (617) 223-8364,
The Chelsea Street Bridge, across the Chelsea River, mile 1.2, between Chelsea and East Boston, Massachusetts, has a vertical clearance in the closed position of 7 feet above mean high water and 17 feet above mean low water, and 175 feet above mean high water in the full open position. The bridge opens on signal at all times as required by 33 CFR 117.593.
The waterway is transited predominantly by commercial operators delivering petroleum products to facilities located upstream from the new bridge.
The lift span at the new bridge will be operated by the contractor, J.F. White Company, for testing from 7 a.m. on November 12, 2011 through 11 a.m. on December 3, 2011. At least a four hour advance notice shall be required for bridge openings during the above test period. Requests to open the bridge may be made by calling J.F. White Company at (617) 590-1286 or (617) 799-2913 or by VHF FM marine radio channel 13 and 16.
The waterway users and upstream oil facilities, were all advised regarding the four hour advance notice requirement. No objections were received.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Final rule.
The Coast Guard is removing the existing drawbridge operation regulation for the U.S. 17 bridge across Neuse River, mile 33.7 at New Bern, NC. The drawbridge was replaced with a fixed bridge in 1999. Therefore, the operating regulation pertaining to the U.S. 17 drawbridge is no longer applicable or necessary.
This rule is effective November 23, 2011.
Documents indicated in this preamble as being available in the docket, are part of docket USCG-2011-0974 and are available by going to
If you have questions on this rule, call or email Lindsey Middleton, Bridge Management Specialist, Coast Guard; telephone (757) 398-6629, email
The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the U.S. 17 bridge requiring the draw operating regulation at 33 CFR 117.824(a), was removed and replaced with a fixed bridge in 1999. The bridge operator and those transiting in the vicinity of this bridge have not been subject to the enforcement of this regulation since the bridge was removed and replaced with a fixed bridge. Therefore, the regulation is no longer applicable and shall be removed from publication. A Notice of Proposed Rulemaking (NPRM) is unnecessary because the Coast Guard is removing an unneeded regulation that has no further practical value and
Under 5 U.S.C. 553(d)(1), a rule that relieves a restriction is not required to provide the 30 day notice period before its effective date. This rule removes the U.S. 17 draw operation requirements under 33 CFR 117.824(a), thus removing a regulatory restriction on the public. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the
The drawbridge across Neuse River, mile 33.7, at New Bern, NC was removed and replaced with a fixed bridge in 1999. It has come to the attention of the Coast Guard that the governing regulation for the drawbridge, found in 33 CFR 117.824(a), was never removed subsequent to the completion of the fixed bridge that replaced it. Therefore, this regulation seeks to remove the U.S. 17 bridge operating regulation which is no longer applicable or necessary due the present bridge being a fixed structure.
The Coast Guard is changing the regulation in 33 CFR 117.824(a) by removing the restriction and the regulatory burden related to the draw operations for a drawbridge that is no longer in existence. The change removes the section of the regulation governing the operation of the U.S. 17 bridge since it has been replaced with a fixed bridge. The replacement took place in 1999, approximately twelve years ago. This Final Rule seeks to update the Code of Federal Regulations by removing language that regulates signaling and notice requirements for the opening of a bridge that no longer exists. This change does not affect waterway or land traffic. This change does not affect nor does it alter those portions of 33 CFR 117.824 dealing with the Atlantic and East Carolina Railway bridge.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The Coast Guard does not consider this rule to be “significant” under that Order because it is an administrative change and does not affect waterway or land traffic.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
Since this drawbridge has been removed and replaced with a fixed bridge, the regulation governing draw operations for this bridge is no longer needed. There is no new restriction or regulation being imposed by this rule therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
The draw of the Atlantic and East Carolina Railway Bridge, mile 80.0, at Kinston shall open on signal if at least 24 hours notice is given.
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is granting a petition submitted by Eastman Chemical Corporation—Texas Operations (Eastman Chemical) to exclude from hazardous waste control (or delist) a certain solid waste. This final rule responds to the petition submitted by Eastman Chemical to delist three waste streams generated from its rotary kiln incinerator (RKI). These waste streams are the rotary kiln incinerator (RKI) bottom ash, RKI fly ash, and RKI scrubber water blowdown. The RKI bottom ash and the RKI fly ash are derived from the management of several F-, K-, and U-waste codes. These waste codes are F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. The Scrubber water blowdown produced by the RKI's air pollution control equipment is also derived from the management of several F-, K-, and U-waste codes as well as certain characteristic hazardous wastes. These waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. The RKI is authorized to manage a list of additional F-, K-, U-, and P- codes to cover off-site sources not attributed to the above waste codes. If these waste codes are not specifically listed in the delisting exclusion, they are not covered by the exclusion and can not be managed as non-hazardous, unless and until, the exclusion is modified to include them.
After careful analysis and evaluation of comments submitted by the public, the EPA has concluded that the petitioned wastes are not hazardous waste when disposed of in Subtitle D landfills or in the case of the scrubber water blowdown, discharged in conjunction with its TPDES discharge permit. This exclusion applies to the RKI bottom ash, RKI fly ash and RKI scrubber water blowdown generated at Eastman Chemical's Longview, Texas facility. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when disposed of in Subtitle D landfills or discharged in accordance with a TPDES permit but imposes testing conditions to ensure that the future-generated wastes remain qualified for delisting.
The public docket for this final rule is located at the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for viewing in the EPA Freedom of Information Act review room on the 7th floor from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665-6444 for appointments. The reference number for this docket is “EPA-R06-RCRA-2009-0312”. The public may copy material from any regulatory docket at no cost for the first 100 pages and at a cost of $0.15 per page for additional copies.
For general information, contact Ben Banipal, at (214) 665-7324. For technical information concerning this notice, contact Michelle Peace, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas, (214) 665-7430.
The information in this section is organized as follows:
The EPA is finalizing:
(1) The decision to grant Eastman's petition to have its RKI Fly ash, bottom ash and scrubber blowdown water excluded, or delisted, from the definition of a hazardous waste, subject to certain continued verification and monitoring conditions; and
(2) to use the Delisting Risk Assessment Software to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency used this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.
After evaluating the petition, EPA proposed and issued a direct final rule, on September 24, 2010 to exclude the Eastman Chemical waste from the lists of hazardous wastes under §§ 261.31 and 261.32. The direct final rule received adverse comments and was subsequently withdrawn on November 1, 2010. This decision is based on the proposed rule issued on September 24, 2010. The comments received on this rulemaking will be addressed as part of this decision.
Eastman's petition requests a delisting for the listed hazardous wastes associated with three waste streams. Eastman does not believe that the petitioned wastes meet the criteria for which EPA listed it. Eastman also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the final delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. (If the EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste were originally listed, EPA would have proposed to deny the petition.) The EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. The EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. The EPA believes that the petitioned waste does not meet these criteria. EPA's final decision to delist waste from Eastman's facility is based on the information submitted in support of this rule,
This exclusion applies to the waste described in the petition only if the requirements described in Table 1, 2, and 3 of part 261, Appendix IX and the conditions contained herein are satisfied. The exclusion applies to 1,000 cubic yards per calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI scrubber water blowdown waste resulting from the operations of the rotary kiln incinerator at its facility.
Eastman will dispose of the fly ash and bottom ash in an onsite Subtitle D landfill. The scrubber water blowdown will be managed in the waste water treatment plant (WWTP). The sludge from the WWTP was delisted in 2000, and there are new waste codes being managed as part of this petition. See Appendix IX to Part 261, Table 1. All management occurs on-site and will remain the same after the delisting is granted.
This rule is effective November 23, 2011. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).
Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.
EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If Eastman Chemical transports the petitioned waste to or manages the waste in any State with delisting authorization, Eastman Chemical must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.
A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude from the list of hazardous wastes, wastes the generator does not consider hazardous under RCRA.
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke
Petitioners must provide sufficient information to EPA to allow the EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.
Eastman petitioned EPA on December 1, 2008, to exclude from the lists of hazardous wastes contained in §§ 261.24, 261.31, and 261.32, certain wastes from its rotary kiln incineration system. The three waste streams included in the petition were: The RKI fly ash, RKI bottom ash and RKI scrubber water blowdown.
The waste streams are generated from the Eastman facility located in Longview, Texas. The RKI fly ash and RKI bottom ash are listed under EPA Hazardous Waste No. F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. The Scrubber water blowdown produced by the RKI's air pollution control equipment is also derived from the management of several F-, K-, and U- waste codes as well as certain characteristic hazardous wastes. These waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. Specifically, in its petition, Eastman requested that EPA grant exclusions for 1,000 cubic yards per calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI scrubber water blowdown waste resulting from the operations of the rotary kiln incinerator at its facility.
Eastman intends to dispose of the delisted RKI bottom ash and RKI fly ash at a on-site Subtitle D Landfill, and the RKI scrubber water blowdown will be treated in the Wastewater Treatment Plant. Treatment of process wastes and wastes from captured facilities generate the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown that is classified as F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359 listed hazardous wastes pursuant to 40 CFR 261.31 and 261.32. The 40 CFR part 261 appendix VII hazardous constituents which are the basis for listing can be found in Table 1 and Table 2.
Specifically, in its petition, Eastman requested that EPA grant exclusions for 1,000 cubic yards per calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI scrubber water blowdown waste resulting from the operations of the rotary kiln incinerator at its facility.
To support its petition, Eastman submitted:
1. Analytical results of the toxicity characteristic leaching procedure and total constituent analysis for volatile and semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for eight samples for the RKI fly ash and RKI bottom ash, and RKI scrubber water blowdown;
2. Analytical results of the total constituent analysis for volatile and semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for eight samples for the RKI scrubber water blowdown;
3. Analytical results from multiple pH leaching of metals and;
4. The comparison of the results to the maximum allowable TCLP delisting levels found in Tables 4, 5, and 6.
5. Description of the operations and waste received of the RKI.
The EPA received public comments on the September 24, 2010, proposed rule from two interested parties, the Environmental Technology Council (ETC), and Heritage Environmental. Heritage Environmental submitted comments objecting to the absence of the full administrative record not appearing electronically on the regulations.gov site on October 28, 2010. ETC submitted three rounds of comments dated October 28, 2010, February 7, 2011, and March 7, 2011. The comments and responses are addressed below. Some of the ETC October 28, 2010 comments requested documents that were not contained in the electronic docket. The actual records were sent to the commenter for verification purposes and no further comment is warranted.
With respect to those wastes, EPA has already made the determination based on lengthy and thorough LDR rulemakings that combustion or comparable treatment to the specified treatment levels is required to minimize short-term and long-term threats to human health and the environment. In addition, EPA has already determined that disposal of the treated wastes in a RCRA-permitted landfill that meets minimum technology requirements (double synthetic liner, groundwater monitoring,
Likewise, after careful review of the administrative record for the Eastman Chemical delisting petition, it is clear that the incinerator ash and scrubber water blowdown derived from the incineration of numerous F-, K- and U-listed hazardous wastes are not eligible for delisting, and that such an action would also violate the RCRA treatment requirements and land disposal prohibitions.
We begin with basic principles—all seemingly ignored in the proposed delistings. A waste is eligible for delisting only if that waste as generated at a particular facility does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the waste may not contain any other Appendix VIII constituents that would cause the waste to be hazardous. RCRA § 3001(f) and 40 CFR 260.22.
Likewise, the incinerator residues from the Eastman facility are derived from the incineration of numerous waste streams that are F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213 and U359 hazardous wastes. By operation of the derived-from rule, the Eastman incinerator residues are these same F-, K- and U-listed hazardous wastes. The legal issue raised by the Eastman Chemical delisting is whether the original F-, K- and U-listed hazardous wastes would meet the applicable treatment requirements prior to land disposal if the proposed delisting of the incineration residuals were granted.
However, EPA Region 6 has proposed to delist the incinerator residues and allow land disposal at constituent levels that are significantly higher than the required treatment standards. There is no exception from the land disposal prohibitions for inadequately treated residues; in fact, allowing such an exception would obviously eviscerate the treatment requirements. The original F-, K- and U-listed hazardous wastes cannot be land disposed if the incinerator ash does not meet the applicable treatment standards, and a delisting petition cannot be used to evade this statutory requirement. For this reason, the concentration levels in the incineration residues would have to be lower than applicable treatment standards for a delisting to be possible.
The following are examples of F039 treatment levels compared to Eastman delisting levels (all concentrations in mg/l TCLP): Barium 21.0 vs. 100 delisted fly ash; Cadmium 0.11 vs. 0.362 delisted fly ash; Chromium 0.60 vs. 5.0 delisted bottom ash and fly ash; Lead 0.75 vs. 2.45 delisted fly ash; Nickel 11.0 vs. 54.1 delisted bottom ash; Silver 0.14 vs. 5.0 delisted fly ash and bottom ash.
The derived-from rule states that any solid waste generated from the treatment, storage, or disposal of a listed hazardous waste, including any sludge, spill residue, ash, emission control dust, or leachate, remains a hazardous waste
EPA's regulations establish two ways of identifying solid wastes as hazardous under RCRA. A waste may be considered hazardous if it exhibits certain hazardous properties (“characteristics”) or if it is included on a specific list of wastes EPA has determined are hazardous (“listing” a waste as hazardous) because we found them to pose substantial present or potential hazards to human health or the environment. EPA's regulations in the Code of Federal Regulations (40 CFR) define four hazardous waste characteristic properties: ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-261.24).
In order to list wastes EPA conducts a more specific assessment of a particular waste or category of wastes. The Agency will “list” them if they meet criteria set out in 40 CFR 261.11. As described in § 261.11, EPA may list a waste as hazardous if the waste: Exhibits any of the characteristics,
EPA placed a substance on the list of hazardous constituents in Appendix VIII if scientific studies have shown the substance has toxic effects on humans or other life forms.
Generally, listing of wastes are not driven by threshold limits except in the case of the toxicity characteristic (TC) determination. Several of the limits cited by the commenter are the TC limit for the constituents stated. If the waste is characteristic, then it can't be delisted. The delisting limit is bound by the TC limit.
In 1984, Congress created EPA's Land Disposal Restrictions (LDR) program. The LDR program ensures that toxic constituents present in hazardous waste are properly treated before hazardous waste is land disposed. Since then, the LDR team has developed mandatory technology-based treatment standards that must be met before hazardous waste is placed in a landfill. These standards help minimize short and long-term threats to human health and the environment, which directly benefits local communities where hazardous waste landfills are located. The LDR Program does not determine if a waste is hazardous. It regulates how hazardous wastes are to be managed at the time of disposal.
We do believe that the concentrations specified as delisting levels do minimize short term and long term threats to human health and the environment. Whereas, some LDR treatment standards are based on the best demonstrated technology, the delisting exit levels are risk based standards. We have not stated that Eastman is not subject to the LDR standards because the waste was not delisted at the point of generation, Eastman may submit a variance to the treatment standards as described in § 268.42(b) or 268.44 in order to ensure compliance with the LDR standards, but the Delisting decision may still be made. However, wastes destined for disposal in Subtitle C landfills are subject to the LDR limits. Therefore, wastes when delisted must comply with all applicable Subtitle D landfill requirements.
In addition, the delisting levels for numerous metals, volatiles, semi-volatiles and pesticides listed in the tables are very high, some on the order of 1,000,000,000 mg/kg (
Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
Health Resources and Services Administration (HRSA), HHS.
Final rule.
This final rule exempts the system of records (09-15-0054, the National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners, HHS/HRSA/BHPr) for the National Practitioner Data Bank (NPDB) from certain provisions of the Privacy Act (5 U.S.C. 552a). The exemption is necessary due to the recent expansion of the NPDB under section 1921 of the Social Security Act to include the investigative materials compiled for law enforcement purposes reported to the Healthcare Integrity and Protection Data Bank (HIPDB). The system of records for the HIPDB is exempt from certain provisions of the Privacy Act (
The effective date of this rule is December 23, 2011.
Cynthia Grubbs, Director, Division of Practitioner Data Banks, Bureau of Health Professions, Health Resources and Services Administration, Parklawn Building, 5600 Fishers Lane, Room 8-103, Rockville, MD 20857;
The NPDB was established by Title IV of Public Law 99-660, the Health Care Quality Improvement Act of 1986, as amended. The NPDB is primarily an alert or flagging system intended to facilitate a comprehensive review of health care practitioners' professional credentials. On January 28, 2010, HRSA published a final rule in the
The HIPDB was created by the Health Insurance Portability and Accountability Act (HIPAA) of 1996, Public Law (Pub. L. 104-191), which required the Secretary, acting through the Office of Inspector General (OIG) and the United States Attorney General, to establish a new health care fraud and abuse control program, to combat health care fraud and abuse. Together, the HIPDB and NPDB serve to facilitate review of health care practitioners' and entities' backgrounds.
In the February 17, 2011
One of the purposes of these data will be use of this information by a Federal or State government agency charged with the responsibility of investigating or prosecuting a case where there is an indication of a violation or potential violation of law, whether civil, criminal, or regulatory in nature. The information in this system may also be used in the preparation for a trial or hearing for such violation.
Specifically, this final rule now exempts the NPDB from the following subsections of the Privacy Act for the reasons set forth below:
• Subsection (c)(3). This provision requires that individuals be provided an accounting of disclosures of their records from a Privacy Act system, if requested. Providing an accounting of disclosures (
• Subsections (d)(1) through (d)(4). These provisions require that individuals be allowed to access and correct or amend their records in a Privacy Act system, if requested. Release of investigative records to an individual who is the subject of an investigation could interfere with pending or prospective law enforcement proceedings, or could reveal sensitive investigative techniques and procedures. Report subjects will have access to information on all other queries to the data bank. Report subjects are guaranteed access to, and correction rights for, substantive information reported to the NPDB. The procedures, appearing in 45 CFR part 60, use the Privacy Act access and correction procedures as a basic framework while, at the same time, providing significant additional rights (such as automatic notification to the record subject of any report filed with the data bank). Data bank subjects also have broader rights on NPDB correction procedures, including the right to file a statement of disagreement as soon as a report is filed with the data bank.
• Subsections (e)(4)(G) and (H), and (f). These provisions require that the system of records notice for a Privacy Act system provide the procedures whereby individuals can be notified at their request if the system contains records about them and can request and gain access to, and contest the content of, their records. Notifying an individual who is the subject of an investigation or a witness that a system of records contains information about him or her could reveal the nature and scope of the investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise an investigation. Report subjects are guaranteed access to, and correction rights for, substantive information reported to the NPDB. The same correction procedures apply (contained in 45 CFR part 60) as mentioned in the earlier bullet for subsections (d)(1) through (d)(4).
Accordingly, HRSA proposes to amend 45 CFR 5b.11(b)(2)(ii) of the HHS Privacy Act regulations by adding the following:
• A new paragraph (L) that exempts investigative materials compiled for law enforcement purposes for the National Practitioner Data Bank from requirements (c)(3), (d)(1) through (d)(4), (e)(4)(G) and (H), and (f) of the Privacy Act (5 U.S.C. 552a).
The system of records for the NPDB, which was last published in the
The proposed rule set forth a 60-day public comment period, ending April 18, 2011. HRSA received one response from a national association representing physicians. Following are two concerns highlighted by the commenter and our responses to those concerns.
Based on HRSA's review of the public comments, no revisions have been made to the final rule.
We have reviewed this final rule in accordance with the provisions of Executive Orders 13563 and 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) and have determined that it will have no major effect on the economy or Federal expenditures. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory
The Secretary has determined that this final rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801, and has determined that it does not meet the criteria for a significant regulatory action. In addition, under the Small Business Enforcement Act (SBEA) of 1996, if a rule has a significant economic effect on a substantial number of small businesses, the Secretary must specifically consider the economic effect of a rule on small business entities and analyze regulatory options that could lessen the impact of the rule. The Secretary has reviewed this exemption in accordance with the provisions of the SBEA and certifies that this exemption will not have a significant impact on a substantial number of small entities. Specifically, as indicated above, while the reports of adverse actions to the NPDB will be known to the subjects of the records in the data bank, the access and use of such information by law enforcement agencies would not be known to the subjects of the records, because HRSA believes that disclosure of this information could compromise ongoing law enforcement activities.
Similarly, the final rule will not have effects on State, local, and Tribal governments, and on the private sector such as to require consultation under the Unfunded Mandates Reform Act of 1995.
The Secretary has reviewed this final rule in accordance with Executive Order 13132 regarding federalism and has determined that it does not have “federalism implications.” This rule would not “have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
The proposals made in this final rule would not adversely affect the following family elements: Family safety, family stability, marital commitment; parental rights in the education, nurture and supervision of their children; family functioning, disposable income, or poverty; or the behavior and personal responsibility of youth, as determined under section 654(c) of the Treasury and General Government Appropriations Act of 1999.
In accordance with the provisions of Executive Order 12866, this final rule was not reviewed by the Office of Management and Budget.
This final rule does not have any information collection requirements.
Privacy.
Accordingly, 45 CFR part 5b is amended as set forth below:
5 U.S.C. 301, 5 U.S.C. 552a.
(b) * * *
(2) * * *
(ii) * * *
(L) Investigative materials compiled for law enforcement purposes in the National Practitioner Data Bank (NPDB). (See § 60.16 of this subtitle for access and correction rights under the NPDB by subjects of the Data Bank.)
National Aeronautics and Space Administration (NASA).
Final rule.
NASA has adopted as final, without change, a proposed rule amending the NASA FAR Supplement (NFS) to require contracting officers to notify prospective contractors if they are found to be nonresponsible.
Leigh Pomponio, Procurement Analyst, at (202) 358-0592 or
NASA published a proposed rule in the
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
NASA certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Accordingly, 48 CFR part 1809 is amended as follows:
42 U.S.C. 2455(a), 2473(c)(1).
(a) The contracting officer shall provide written notification to a prospective contractor determined not responsible, which includes the basis for the determination. Notification provides the prospective contractor with the opportunity to take corrective action prior to future solicitations.
National Aeronautics and Space Administration.
Direct final rule.
This direct final rule amends the NASA FAR Supplement (NFS) to make miscellaneous non-substantive administrative changes to be consistent with FAR numbering, FAR terminology, and to allow use of a URL Web site to identify the Agency and Center Ombudsman. These changes are necessary to ensure consistency with the FAR and terminology within NASA.
This direct final rule is effective January 23, 2012 unless Agency receives significant adverse comments by midnight Eastern Standard Time on December 23, 2011. If adverse comment is received, NASA will publish a timely withdrawal of the rule in the
Interested parties may submit comments, identified by RIN number 2700-AD36, via the
Marilyn J. Seppi, NASA, Office of Procurement, Contract Management Division; (202) 358-0447;
NASA has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with NASA's management of procurement regulations and procedures. NASA does not anticipate this direct final rule will result in any changes in the functions or authority of the NFS. NASA expects no opposition to the changes and no significant adverse comments. However, if NASA receives a significant adverse comment, the Agency will withdraw this direct final rule by publishing a notice in the
This final rule makes several administrative changes to the NFS. The numbering in NASA FAR Supplement 1850 is revised to reflect the FAR numbering changes made by Federal Acquisition Circular 2005-21. This final rule deletes the information required to be filled-in by Contracting Officers in NASA FAR Supplement Clause 1852.215-84 when identifying the Ombudsman for the Agency and specific Center. The fill-in is deleted and replaced with a URL Web site where the Agency and Center Ombudsman contact information will be continually updated and maintained by NASA.
This rule also deletes the term “Commerce Business Daily (CBD)” and replaces it with the term “Governmentwide Point of Entry (GPE)” in NASA FAR Supplement Clauses 1852.217-71 and 1852.217-72 to be consistent with the terminology in FAR Subpart 2.101 Definitions.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this final rule. This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comment is not required. However, NASA will consider comments from small entities concerning the affected NFS coverage in accordance with 5 U.S.C. 610. Interested parties should cite 5 U.S.C. 601,
The Paperwork Reduction Act (Pub. L. 104-13) is not applicable because the NFS changes do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Accordingly, 48 CFR Part 1850 and 1852 are amended as follows:
42 U.S.C. 2473(c)(1).
14 CFR part 1209, subpart 3, Contract Adjustment Board, establishes the Contract Adjustment Board (CAB) as the approving authority to consider and dispose of requests from NASA contractors for extraordinary contractual actions.
(a) After investigating the facts and issues relevant to the contractor's request, the contracting officer shall forward the request to the Associate General Counsel for General Law, including in the forwarding letter—
(1) The nature of the case;
(2) The recommended disposition; and,
(3) If contractual action is recommended, the contracting officer's opinion that the action will facilitate the national defense.
(b) The forwarding letter shall enclose the contractor's request, all supporting material submitted by the contractor, and any material the contracting officer has obtained while investigating the facts and issues relevant to the request. Any classified information in the material forwarded shall be so identified.
(c) Electronic submittal is preferred for unclassified material.
(a) The contracting officer shall take action authorized in the CAB's decision.
(b) Immediately upon execution, including any required Headquarters approval, of a contract or contract modification or amendment implementing the CAB decision, the contracting officer shall forward a copy of the contractual document to the Associate General Counsel for General Law.
(a)
(1) Contractor indemnification requests must be submitted to the cognizant contracting officer for the contract for which the indemnification clause is requested. Contractors shall submit a single request and shall ensure that duplicate requests are not submitted by associate divisions, subsidiaries, or central offices of the contractor.
(2) The contractor shall also provide evidence, such as a certificate of insurance or other customary proof of insurance, that such insurance is either in force or is available and will be in force during the indemnified period.
(b) Action on indemnification requests.
(1) If recommending approval, the contracting officer shall forward the required information to the Assistant Administrator for Procurement, Program Operations Division, along with the following:
(i) For contracts of five years duration or longer, a determination, with supporting rationale, whether the indemnification approval and insurance coverage and premiums should be reviewed for adequacy and continued validity at points in time within the extended contract period.
(ii) A recommended Memorandum of Decision. In addition to the applicable requirements of FAR 50.103-6, the Memorandum of Decision shall contain the following:
(A) The specific definition of the unusually hazardous risk to which the contractor is exposed in the performance of the contract(s);
(B) A complete discussion of the contractor's financial protection program; and
(C) The extent to, and conditions under, which indemnification is being approved for subcontracts.
(d) If approving subcontractor indemnification, the contracting officer shall document the file with a memorandum for record addressing the items set forth in FAR 50.104-3(b) and include an analysis of the subcontractor's financial protection program. In performing this analysis, the contracting officer shall take into consideration the availability, cost, terms and conditions of insurance in relation to the unusually hazardous risk.
Subcontractors shall submit requests for indemnification to the prime contractor and through higher tier subcontractor(s), as applicable. If the prime contractor agrees an indemnity clause should be flowed down to the subcontractor, the prime contractor shall forward its written request for subcontractor indemnification to the cognizant contracting officer for approval in accordance with FAR 50.104-3. The prime contractor's request shall provide information responsive to 1850.104-3, FAR 50.104-3, and FAR 50.104-3(b)(1)(i), (ii), (iv), (v), and (vii). The agreed upon definition of the unusually hazardous risk to be incorporated into the subcontract shall be the same as that incorporated in the prime contract.
(a) Contractors applying for indemnification shall determine which NASA installation has the highest dollar amount of contracts for which indemnification is requested. The indemnification request should be submitted to the procurement officer for that installation, who will then designate a cognizant contracting officer. Contractors shall submit a single request and ensure duplicate requests are not submitted by associate divisions, subsidiaries, or central offices of the contractor.
(b) The receiving installation will become the lead installation and will remain so indefinitely. Lead installation designation may change to another installation if the affected procurement officers agree to the change. Should a change occur in the lead installation, all records related to indemnification of that contractor shall be transferred to the gaining installation.
(b) If resolution cannot be made by the contracting officer, interested parties may contact the installation ombudsman, whose name, address, telephone number, facsimile number, and email address may be found at:
Food Safety and Inspection Service, USDA.
Public meeting; extension of comment period.
The Food Safety and Inspection Service (FSIS) is announcing that it will hold a public meeting on the Agency's implementation plans and methods for controlling non-O157 Shiga toxin-producing
In the Agency's September 20, 2011, document announcing these plans and methods (76 FR 58157), FSIS asked for comments on a variety of issues (76 FR 58164). That comment period, which was originally scheduled to end on November 21, 2011, is now being extended and will end on December 21, 2011.
The teleconference will be held on December 1, 2011, from 1 p.m. to 3 p.m. EST. Submit comments on or before December 21, 2011.
For technical information: Contact Daniel Engeljohn, Assistant Administrator, Office of Policy and Program Development, at (202) 205-0495, or by fax at (202) 720-2025.
On September 20, 2011, FSIS published a document regarding non-O157 Shiga toxin-producing (STEC)
In the September document, FSIS announced that it intends to carry out verification procedures, including sampling and testing of manufacturing trim and other raw ground beef components, to ensure control of both
Finally, FSIS stated that it is planning a survey of its field personnel who are stationed in beef slaughtering and processing establishments, similar to the 2007 “checklist” survey, to determine the processing practices that are employed to reduce the likelihood of contamination of intact and non-intact beef product with these STEC.
In October 2011, the Agency announced its planned revision to the FSIS Microbiology Laboratory Guidebook (MLG) 5B, “Detection and Isolation of Non-O157 Shiga-Toxin Producing
FSIS intends to use these methods, beginning March 5, 2012, in testing raw ground beef or in source material used to make ground beef, as well as mechanically tenderized steaks and roasts, for
Beef slaughter and further processing plants should now begin to assess their food safety systems to ensure that they are capable of controlling these pathogens. Given FSIS's planned course of action, establishments that produce the listed products should take steps to ensure that the laboratory test they use to verify the controls they employ is effective in reliably detecting the presence of these pathogens. Establishments can rely upon the FSIS laboratory methodology released in October and updated on November 4, 2011, which has been demonstrated to reliably identify these pathogens, or they can use an equivalent methodology of their choice.
To provide the public with an opportunity to comment on the Agency's implementation plans and methods for controlling non-O157 STEC in raw, intact and non-intact beef products and product components, FSIS will hold a public meeting by teleconference. The meeting will be held on December 1, 2011. Submit comments on or before December 21, 2011. The teleconference format is being used to provide individuals with easier access to the meeting, particularly those who may lack the resources or time to attend a meeting in person. Access to the 800 number for the teleconference number should be toll free for both domestic and international callers.
Interested persons are encouraged to join the teleconference at or near the start time. FSIS may end the teleconference early if participants are no longer calling in to make comments.
As soon as the meeting transcripts are available, they will be accessible at
FSIS will announce this document online through the FSIS Web page located at
FSIS will also make copies of this
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental notice of proposed rulemaking.
The U.S. Department of Energy (DOE) published an interim final rule on March 9, 2011, amending its test procedures for microwave ovens under the Energy Policy and Conservation Act (EPCA) to provide for the measurement of standby mode and off mode power use by microwave ovens. Those amendments incorporated into the DOE test procedure provisions from the International Electrotechnical Commission (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power,” First Edition 2005-06 (IEC Standard 62301 (First Edition)). In addition, those amendments adopted in the DOE test procedure definitions of modes based on the relevant provisions from the IEC Standard 62301 Second Edition, Final Draft International Standard (IEC Standard 62301 (FDIS)), as well as language to clarify application of these provisions for measuring standby mode and off mode power consumption in microwave ovens. Just prior to publication of the interim final rule, the IEC replaced the First Edition of this standard with the current Second Edition. This supplemental notice of proposed rulemaking proposes to incorporate the latest edition of IEC Standard 62301.
DOE will accept comments, data, and information regarding this supplemental notice of proposed rulemaking (SNOPR) submitted no later than December 23, 2011. See section V, “Public Participation,” for details.
Any comments submitted must identify the SNOPR on Test Procedures for Microwave Ovens, and provide docket number EERE-2008-BT-TP-0011 and/or regulatory information number (RIN) 1904-AB78. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).
Docket: The docket is available for review at
A link to the docket web page can be found at:
For further information on how to submit a comment or review other public comments and the docket, contact Ms. Brenda Edwards at (202) 586-2945 or
Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291
Under EPCA, this program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use (1) as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) for making representations about the efficiency of those products. Similarly, DOE must use these test requirements to determine whether the products comply with any relevant standards promulgated under EPCA.
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides in relevant part that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))
The EISA 2007 amendments to EPCA, in relevant part, require DOE to amend the test procedures for all residential covered products to include measures of standby mode and off mode energy consumption. Specifically, section 310 of EISA 2007 provides definitions of “standby mode” and “off mode” (42 U.S.C. 6295(gg)(1)(A)) and permits DOE to amend these definitions in the context of a given product (42 U.S.C. 6295(gg)(1)(B)). The statute requires integration of such energy consumption “into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product, unless the Secretary determines that—
(i) The current test procedures for a covered product already fully account for and incorporate the standby mode and off mode energy consumption of the covered product; or
(ii) Such an integrated test procedure is technically infeasible for a particular covered product, in which case the Secretary shall prescribe a separate standby mode and off mode energy use test procedure for the covered product, if technically feasible.” (42 U.S.C. 6295(gg)(2)(A))
Under the statutory provisions adopted by EISA 2007, any such amendment must consider the most current versions of IEC Standard 62301, “Household electrical appliances—Measurement of standby power,” and IEC Standard 62087, “Methods of measurement for the power consumption of audio, video, and related equipment.”
Historically, DOE's active mode test procedure for microwave ovens appeared at appendix I to subpart B of Title 10 of the Code of Federal Regulations (CFR).
DOE published a notice of proposed rulemaking (NOPR) on October 17, 2008 (hereafter referred to as the October 2008 TP NOPR), in which it proposed incorporating provisions from IEC Standard 62301 (First Edition) into the DOE active mode test procedure, as well as language to clarify application of these provisions for measuring standby mode and off mode power in microwave ovens. 73 FR 62134. DOE held a public meeting on November 14, 2008 (hereafter referred to as the November 2008 public meeting) to hear oral comments on and solicit information relevant to the October 2008 TP NOPR. Interested parties remarked upon, among other things, harmonization of standards and test procedures with those of other countries and international agencies. In particular commenters urged DOE to consider IEC Standard 62301, “Household electrical appliances—Measurement of standby power,” Edition 2.0 2011-01 (IEC Standard 62301 (Second Edition) or “Second Edition”), which was in the process of being drafted.
EPCA requires DOE to consider the most recent version of IEC Standard 62301. (42 U.S.C. 6295(gg)(2)(A)) After the October 2008 TP NOPR was published, DOE determined that it would consider the revised version of IEC Standard 62301, (
Because the EISA 2007 amendments to EPCA required DOE to establish test procedures for standby mode and off mode by March 31, 2011, and because DOE is conducting a concurrent energy conservation standards rulemaking for standby and off mode energy use, discussed below, DOE published a supplemental notice of proposed rulemaking (SNOPR) on July 22, 2010 (hereafter referred to as the July 2010 TP SNOPR) proposing mode definitions based on those in the then current draft version of IEC Standard 62301 (Second Edition), designated as IEC Standard 62301 Second Edition, Committee Draft for Vote (IEC Standard 62301 (CDV)). 75 FR 42612, 42620-23 (July 22, 2010). DOE noted in the July 2010 TP SNOPR that IEC Standard 62301 (CDV) contained proposed amendments to IEC Standard 62301 (First Edition), including new mode definitions based on those proposed in IEC Standard 62301 (Second Edition), Committee Draft 2 (IEC Standard 62301 (CD2))
DOE held a public meeting on September 16, 2010 (hereafter referred to as the September 2010 public meeting), to hear oral comments on and solicit information relevant to the July 2010 TP SNOPR. Interested parties remarked upon, among other things, covered products, incorporation of IEC Standard 62301 (First Edition), mode definitions, and testing procedures. On October 29, 2010, the IEC released a finalized draft version of IEC Standard 62301 (Second Edition), IEC Standard 62301 (FDIS).
On March 9, 2011, DOE published an interim final rule (hereafter referred to as the March 2011 Interim Final Rule) amending the test procedures for microwave ovens. 76 FR 12825. The March 2011 Interim Final Rule incorporated by reference specific clauses from IEC Standard 62301 (First Edition) regarding test conditions and testing procedures for measuring the average standby mode and average off mode power consumption into the microwave oven test procedure. DOE also incorporated into the microwave oven test procedure definitions of “active mode,” “standby mode,” and “off mode” based on the definitions provided in IEC Standard 62301 (FDIS). DOE further adopted language to clarify the application of clauses from IEC Standard 62301 (First Edition) for measuring standby mode and off mode power in the interim final rule. Specifically, DOE defined the test duration for cases in which the measured power is not stable (
The amendments adopted in the March 2011 Interim Final Rule became effective on April 8, 2011. However, DOE noted that in order to ensure that the amended test procedure adequately addresses the EISA 2007 requirement to consider the most recent version of IEC Standard 62301, and recognizing that the IEC issued IEC Standard 62301 (Second Edition) in January of 2011, DOE issued the microwave oven test procedure as an interim final rule and offered an additional 180-day comment period to consider whether any changes should be made to the interim final rule in light of publication of IEC Standard 62301 (Second Edition). DOE stated that it would consider these comments and, to the extent necessary, publish a final rulemaking incorporating any changes. 76 FR 12825, 12830-31. In response to the March 2011 Interim Final Rule, interested parties commented, among other things, that DOE should incorporate by reference IEC Standard 62301 (Second Edition) for optimal international harmonization, to give clarity and consistency to the regulated community and to decrease the testing burden.
As stated above, DOE is considering amended microwave oven energy conservation standards addressing standby and off mode energy use concurrently with the test procedure rulemaking process. The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100-12), which amended EPCA, established prescriptive standards for kitchen ranges and ovens, but no standards were established for microwave ovens. (42 U.S.C. 6295(h)(1)) The NAECA amendments also required DOE to conduct two cycles of rulemakings to determine whether to revise the standard. (42 U.S.C. 6295(h)(2)) DOE undertook the first cycle of these rulemakings and issued a
DOE initiated the second cycle of energy conservation standards rulemakings for cooking products by publishing a framework document covering, in part, microwave ovens, and giving notice of a public meeting and the availability of the framework document. 71 FR 15059 (March 27, 2006). On November 15, 2007, DOE published an advance notice of proposed rulemaking (ANOPR) (72 FR 64432) (hereafter the November 2007 ANOPR) concerning energy conservation standards for commercial clothes washers and residential dishwashers, dehumidifiers, and cooking products, including microwave ovens (collectively, appliance standards). In the November 2007 ANOPR, DOE determined that energy consumption by microwave ovens in the standby mode represents a significant portion of microwave oven energy use, and that a standard regulating such energy consumption would likely have significant energy savings. 72 FR 64432, 64441-42. Before standby power could be included in an efficiency standard for microwave ovens, however, test procedures for the measurement of standby power would be required.
On December 13, 2007, DOE held a public meeting to receive comments on the November 2007 ANOPR (hereafter referred to as the December 2007 public meeting). At the December 2007 public meeting, DOE presented the possibility that test standard IEC Standard 62301 (First Edition) could be incorporated by reference into DOE's microwave oven test procedure to measure standby power. DOE also discussed clarifications to the IEC Standard 62301 (First Edition) test conditions, including a requirement that, if the measured power were not stable, the standby mode power test would be run for a period of 12 hours with an initial clock setting of 12 a.m. This would permit more accurate measurement of average standby power consumption.
DOE published a NOPR for the appliance standards rulemaking on October 17, 2008, in which it tentatively concluded that a standard for microwave oven standby mode and off mode energy consumption would be technologically feasible and economically justified. 73 FR 62034. DOE received responses to the NOPR from interested parties regarding the harmonization of standards and test procedures with those of other countries and international agencies. As a result of these comments, DOE decided to consider the revised version of IEC Standard 62301 (
As discussed in section I, DOE published the March 2011 Interim Final Rule to provide an opportunity for it to fully consider whether any changes should be made in light of publication of IEC Standard 62301 (Second Edition). For this reason, and, based upon the public comment received on the March 2011 Interim Final Rule, DOE decided to further analyze IEC Standard 62301 (Second Edition), which published on January 27, 2011. Consistent with its statutory mandate, DOE has reviewed this latest version of the IEC standard and believes that it improves some measurements of standby mode and off mode energy use. Accordingly, DOE proposes in today's SNOPR to incorporate certain provisions of the IEC Standard 62301 (Second Edition), along with clarifying language, into the DOE test procedures for microwave ovens adopted in the March 2011 Interim Final Rule. In addition, DOE proposes in today's SNOPR to make minor editorial changes in 10 CFR part 430, subpart B, appendix I, section 2.2.1.1 to aid the reader by presenting the electrical supply voltages consistently for microwave ovens and conventional cooking products, and also in section 1.12 to clarify the alternative use of metric units for various measurements and calculations in the conventional cooking products test procedure. For the reader's convenience, DOE has reproduced in this SNOPR the entire body of regulatory text from the March 2011 Interim Final Rule for the microwave oven test procedure, further amended as appropriate according to today's proposals.
As noted above, EPCA requires that DOE determine whether a proposed test procedure amendment would alter the measured efficiency of a product, thereby requiring adjustment of existing standards. (42 U.S.C. 6293(e)) Because there are currently no Federal energy conservation standards for microwave ovens (including energy use in the standby and off modes), such requirement does not apply to this rulemaking. DOE is conducting a concurrent rulemaking process to consider standby and off mode energy conservation standards and will consider this test procedure rulemaking as any standards are developed.
DOE defines “microwave oven” as a class of kitchen ranges and ovens which is a household cooking appliance consisting of a compartment designed to cook or heat food by means of microwave energy. 10 CFR 430.2 In the March 2011 Interim Final Rule, DOE determined that this regulatory definition includes all ovens equipped with microwave capability, including combination ovens (
DOE also noted in the March 2011 Interim Final Rule that, based on its limited testing of a small sample of over-the-range microwave ovens, as well as more extensive testing of a sample of over-the-range combination microwave ovens, DOE did not identify any different standby or off modes as
The Association of Home Appliance Manufacturers (AHAM) objected to the definition of covered products in the March 2011 Interim Final Rule because it does not consider the effects on a possible future active mode test procedure. AHAM stated that an active mode test procedure is likely to have inherent complexities, as indicated by DOE's repeal of the active mode test procedure, and not considering active mode in the definition of covered products will only add to those complexities. AHAM stated that DOE should address this issue now and would work with DOE to determine how the differences between microwave-only ovens, over-the-range microwave ovens, and combination ovens should be addressed. (AHAM, No. 31 at p. 2)
As discussed above, DOE will evaluate the suitability of separate provisions for measuring the active mode energy use of different heating components or other product features related to installation configuration when considering future amendments to the microwave oven test procedure to address active mode. DOE may consider at that time whether amendments to the definition of “microwave oven” are necessary for the development of an active mode test procedure. DOE also notes that it makes determinations regarding the scope of covered products, including potential grouping in product classes, in the energy conservation standards rulemaking process. As discussed in the March 2011 Interim Final Rule, under the definition of “microwave oven,” all ovens equipped with microwave capability would be considered covered products, and that for the standby mode and off mode test procedure, the same testing methodology can be used for microwave-only, over-the-range microwave ovens, and combination microwave ovens. 76 FR 12825, 12829-30 (Mar. 9, 2011). For these reasons, DOE is not proposing amendments to the definition of “microwave oven” in 10 CFR 430.2 in today's SNOPR.
AHAM commented that the determination of covered products in the March 2011 Interim Final Rule is overly broad. AHAM stated that combination ovens are now covered products under the definition of “microwave oven” according to the March 2011 Interim Final Rule, but the adopted test procedure fails to make that clear. AHAM stated that, according to the March 2011 Interim Final Rule, a free-standing range with microwave capability would be excluded, but this is not clear from the definition. AHAM continues to believe that DOE should not consider combination ovens as meeting the definition of “microwave oven,” but that DOE could alternatively clarify the intent to include combination ovens as covered products by defining the term “combination oven.” (AHAM, No. 31 at p. 2) Whirlpool supported the comments made by AHAM. (Whirlpool, No. 30 at p. 1)
Although DOE provided a definition of a combination oven as a microwave oven that incorporates convection features and possibly other means of cooking in the March 2011 Interim Final Rule, it agrees that additional clarity would be gained by codifying a definition. To that end, DOE is proposing to add such a definition of “combination oven” to the definitions in 10 CFR 430.2. DOE further notes that the definition of “microwave oven” adopted in the March 2011 Interim Final Rule specifies that the appliance would consist of a compartment designed to cook or heat food by means of microwave energy and would include combination ovens. However, 10 CFR 430.2 additionally defines a microwave/conventional range as distinct from a microwave oven, although it incorporates a microwave oven along with a conventional oven and conventional cooking top. Because the test procedure applies only to microwave ovens and not to microwave/conventional ranges, a free-standing range with microwave capability in one compartment and a conventional oven in a separate compartment would not be a covered product under this rulemaking. Additionally, a range incorporating a single compartment with microwave capability and other cooking or heating means, along with a conventional cooking top, would not be considered a covered product because the cooking top portion would exclude the range from the relevant portion of the definition of “microwave oven” (
AHAM also commented that, based on DOE's statement that the definition of combination microwave oven as a covered product does not hinge on which cooking mode is primary (
DOE defines “conventional oven” as “a class of kitchen ranges and ovens which is a household cooking appliance consisting of one or more compartments intended for the cooking or heating of food by means of either a gas flame or electric resistance heating. It does not include portable or countertop ovens which use electric resistance heating for the cooking or heating of food and are designed for an electrical supply of approximately 120 volts.” 10 CFR 430.2 Because this definition does not provide for the option of cooking or heating food by means of microwave energy, DOE concludes that a product comprising a single compartment that uses both radiant heat and microwave energy for cooking would be covered only under the definition of “microwave oven,” which includes combination microwave ovens (including those with radiant heating elements) regardless of which is considered the primary cooking mode, and would not be covered as a conventional cooking product.
DOE acknowledges that the definition of “microwave oven” considers only a single compartment, while the definition of “conventional oven” allows for the possibility of one or more compartments. DOE believes that, for products that consist of multiple oven
DOE notes that its regulations contain certain provisions allowing a manufacturer to seek a waiver from the test procedure requirements for covered consumer products if at least one of the following conditions is met: (1) The petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedure, or (2) when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). Petitioners must include in their petition any alternative test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption characteristics. 10 CFR 430.27(b)(1)(iii). The Assistant Secretary for Energy Efficiency and Renewable Energy may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). Waivers remain in effect pursuant to the provisions of 10 CFR 430.27(m).
As discussed in section III.B, the amendments to the DOE microwave oven test procedure codified in the CFR would clarify that the procedures and calculations adopted in the final rule need not be performed to determine compliance with energy conservation standards, until compliance with any final rule establishing amended energy conservation standards for microwave ovens in standby mode and off mode is required. At that time, any application for waiver from the test procedure may be submitted. As noted in section I, DOE is currently conducting an energy conservation standards rulemaking to address microwave oven standby power consumption. DOE also notes that determinations as to whether certain products are considered covered under DOE's regulations are made in the energy conservation standards rulemaking.
AHAM commented that it opposes the inclusion of thermal elements designed for surface browning in the definition of microwave ovens. AHAM noted DOE repealed the active mode test procedure for microwave ovens because DOE determined it was not repeatable or reproducible and by including microwave ovens with thermal elements in the definition of microwave ovens, that same unworkable situation would be created here. According to AHAM, there is currently no repeatable and reproducible test procedure for microwave ovens with thermal elements, and those units with thermal elements may use different amounts of energy than units with microwave-only capability. In addition, AHAM commented that there are no agreed-upon definitions as to what constitutes “browning.” AHAM urged DOE to not include thermal elements designed for surface browning in the definition of “microwave oven.” (AHAM, No. 31 at pp. 2-3) Whirlpool supported the comments made by AHAM. (Whirlpool, No. 30 at p. 1)
As discussed above, DOE may consider amendments to the test procedure to measure the active mode energy use in a separate test procedure rulemaking process, including the methods for measuring the energy use of thermal elements. As discussed in the March 2011 Interim Final Rule, under the definition of “microwave oven,” all ovens equipped with microwave capability would be considered a covered products, including those with thermal elements. 76 FR 12825, 12830 (Mar. 9, 2011). DOE also makes determinations regarding the scope of covered products in the energy conservation standards rulemaking process. As a result, DOE is not proposing amendments to the definition of “microwave oven” in 10 CFR 430.2 to exclude thermal elements designed for surface browning in today's SNOPR.
AHAM commented that DOE should again consider the differences between countertop microwave ovens and over-the-range microwave ovens, noting there are significant differences both in energy consumption and consumer utility. AHAM noted that countertop microwave ovens are typically designed for room temperature ambient conditions, whereas over-the-range microwave ovens must be designed to withstand the higher temperatures above a range. AHAM commented that features such as the display require more energy for over-the-range microwave ovens to withstand the higher temperatures, and that Vacuum Fluorescent Displays (VFDs) are used more often in such units because of their reliability at higher temperatures, but require higher current to operate in both active and standby modes. AHAM noted that countertop microwave ovens can use lower-power Light Emitting Diode (LED) displays due to the lower ambient temperatures. AHAM added that other energy-using features typically exist only in over-the-range microwave ovens, such as air venting and circulation, forced cooling, and cooktop lighting. (AHAM, No. 31 at p. 3) Whirlpool supported the comments made by AHAM. (Whirlpool, No. 30 at p. 1)
As discussed in the March 2011 Interim Final Rule, DOE did not identify during its research and testing any different standby or off modes for over-the-range microwave-only and combination microwave ovens as compared to countertop microwave-only units. DOE noted that differences in energy use, installation configurations, and heating features between countertop and over-the-range configurations that may warrant different product classes would be evaluated as part of the energy conservation standards rulemaking addressing standby mode and off mode for microwave ovens. 76 FR 12825, 12829-30 (Mar. 9, 2011). DOE may consider the suitability of separate provisions for over-the-range microwave ovens to measure the energy performance of active mode features such as air venting and circulation, forced cooling, and cooktop lighting when considering future active mode test procedure amendments.
Intirion Corporation (Intirion) commented that its product—an integrated microwave oven, refrigerator/freezer, and two charging stations (“MicroFridge”)—should not be considered a covered product under the proposed energy conservation standards for microwave oven standby power and should be considered exempt from the standard. (Intirion, No. 29 at p. 1) Intirion commented that the MicroFridge should be considered a combination appliance which, according to Intirion, is significantly different from a typical microwave oven. Intirion also noted that, although the MicroFridge can either be shipped as a pre-assembled combination appliance or as a separate unit (with the consumer attaching the microwave oven and refrigerator/freezer on-site), the intention of the MicroFridge is to be used as a combination appliance. (Intirion, No. 29 at pp. 1-2) The MicroFridge allows the consumer to power a microwave oven, refrigerator/freezer, and charging stations from a single outlet. Intirion commented that the microwave oven controller in the MicroFridge also manages electrical flow for the microwave oven, refrigerator/freezer, and charging stations to prevent the electrical circuit from overloading. When the microwave
In response, as discussed above for products that consist of multiple oven compartments but no integral cooking top portion, DOE notes that its regulations contain certain provisions allowing a manufacturer to seek a waiver from the test procedure requirements for covered consumer products if at least one of the following conditions is met: (1) The petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedure, or (2) when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). DOE also notes that determinations as to whether certain products are considered covered under DOE's regulations are made in the energy conservation standards rulemaking.
The effective date of the standby and off mode test procedures for microwave ovens would be 30 days after the date of publication of the final rule. DOE's amended test procedure regulations codified in the CFR would clarify, though, that the procedures and calculations adopted in the final rule need not be performed to determine compliance with energy conservation standards, until compliance with any final rule establishing amended energy conservation standards for microwave ovens in standby mode and off mode is required. However, as of 180 days after publication of the final rule, any representations as to the standby mode and off mode energy consumption of the products that are the subject of this rulemaking would need to be based upon results generated under the applicable provisions of this test procedure. (42 U.S.C. 6293(c)(2))
As noted above, EPCA, as amended by EISA 2007, requires that test procedures be amended to include standby mode and off mode energy consumption, taking into consideration the most current versions of IEC Standards 62301 and 62087. (42 U.S.C. 6295(gg)(2)(A)) The March 2011 Interim Final Rule incorporated in the test procedures for microwave ovens relevant provisions from IEC Standard 62301 (First Edition) for measuring standby mode and off mode power. DOE reviewed the IEC Standard 62301 (First Edition) and concluded that it would be generally applicable to microwave ovens, although some clarification would be needed. Specifically, DOE adopted a specific standby mode power measurement methodology for units in which power varies as a function of displayed time. 76 FR 12825, 12837-12840 (Mar. 9, 2011). With these clarifications in place, the March 2011 Interim Final Rule referenced IEC Standard 62301 (First Edition) for the standby mode and off mode wattage measurements.
DOE noted in the March 2011 Interim Final Rule that there were significant differences between IEC Standard 62301 (First Edition) and IEC Standard 62301 (FDIS), which was the latest draft version of IEC Standard 62301 (Second Edition) available during the drafting of the interim final rule.
DOE noted in the March 2011 Interim Final Rule that IEC published the final version of IEC Standard 62301 (Second Edition) on January 27, 2011, too late to be incorporated into the rulemaking. DOE also noted that significant changes in the methodology of IEC Standard 62301 were first introduced only at the IEC Standard 62301 (FDIS) stage. DOE noted that those changes had not been, at that time, the subject of significant public comment from interested parties, nor had DOE had the opportunity to conduct a thorough analysis of those provisions. Id. at 12833. Given the pending statutory deadline for issuance of a microwave oven standard and the recent adoption of IEC Standard 62301 (Second Edition), DOE decided to base the test procedure amendments in the March 2011 Interim Final Rule (other than the mode definitions) on the provisions of IEC Standard 62301 (First Edition).
In response to the March 2011 Interim Final Rule, AHAM commented that DOE should incorporate by reference IEC Standard 62301 (Second Edition) as published. AHAM also commented that all of the provisions incorporated by reference should be from IEC Standard 62301 (Second Edition) and not reference sections from both IEC Standard 62301 (First Edition) and IEC Standard 62301 (Second Edition), including any draft versions. AHAM noted that the Second Edition has been vetted through an extensive consensus method of standards development that includes dozens of countries. AHAM also noted that IEC Standard 62301 (Second Edition) contains a number of important clarifications not present in the First Edition. AHAM commented that incorporation by reference of the Second Edition will allow for optimum international harmonization, which gives clarity and consistency to the regulated community, and also significantly decreases the testing burden on manufacturers. AHAM stated that if DOE maintains its incorporation by reference of IEC Standard 62301 (First Edition), regulated parties would have to test products under one test procedure in the United States and a different procedure in other countries, adding significant testing burden. (AHAM, No. 31 at pp. 3-4; AHAM, DOE-HQ-2011-0014, No. 10 at pp. 3-
As discussed in section I, DOE published the March 2011 Interim Final Rule to provide an opportunity for it to fully consider whether any changes should be made in light of publication of IEC Standard 62301 (Second Edition). DOE agrees with the commenters that IEC Standard 62301 (Second Edition) is an internationally-accepted test procedure for measuring standby power in residential appliances, and that it provides clarification to certain sections as compared to the First Edition, as discussed in the following paragraphs.
Section 4, paragraph 4.4 of the Second Edition revises the power measurement accuracy provisions of the First Edition. A more comprehensive specification of required accuracy is provided in the Second Edition, which depends upon the characteristics of the power being measured. Testers using the Second Edition are required to measure the crest factor and power factor of the input power, and to calculate a maximum current ratio (MCR) (paragraph 4.4.1 of the Second Edition). The Second Edition then specifies calculations to determine permitted uncertainty in MCR. DOE notes, however, that the allowable uncertainty is the same or less stringent than the allowable uncertainty specified in the First Edition, depending on the value of MCR and the power level being measured (see Table III.1 for examples). This change in the allowable uncertainty, however, maintains sufficient accuracy of measurements under a full range of possible measured power levels without placing undue demands on the instrumentation. These power measurement accuracy requirements were based upon detailed technical submissions to the IEC in the development of IEC Standard 62301 (FDIS), which showed that commonly-used power measurement instruments were unable to meet the original requirements for certain types of loads. Therefore, DOE believes that the incremental testing burden associated with the additional measurements and calculations is offset by the more reasonable requirements for testing equipment, while maintaining measurement accuracy deemed acceptable and practical by voting members for IEC Standard 62301 (Second Edition). For these reasons, DOE proposes in today's supplemental notice to incorporate by reference in 10 CFR part 430, subpart B, appendix I, section 2.9.1.3 the power equipment specifications in section 4, paragraph 4.4 of IEC Standard 62301 (Second Edition).
DOE notes that section 5, paragraph 5.2 of IEC Standard 62301 (Second Edition) maintains the installation and setup procedures incorporated by reference in the microwave oven test procedure in the March 2011 Interim Final Rule from the First Edition. These provisions require that the appliance be prepared and set up in accordance with manufacturer's instructions, and that if no instructions are given, then the factory or “default” settings shall be used, or where there are no indications for such settings, the appliance is tested as supplied. Additionally, IEC Standard 62301 (Second Edition) adds certain clarifications to the installation and setup procedures in section 5, paragraph 5.2 of the First Edition regarding products equipped with a battery recharging circuit for an internal battery, as well as instructions for testing each relevant configuration option identified in the product's instructions for use. DOE is not aware of any microwave oven with an internal battery, or with a recharging circuit for such a battery. DOE also believes that a requirement to separately test each configuration option could substantially increase test burden and potentially conflicts with the requirement within the same section to set up the product in accordance with the instructions for use or, if no such instructions are available, to use the factory or “default” settings. Therefore, DOE tentatively concludes that the portions of the installation instructions in section 5, paragraph 5.2 of IEC Standard 62301 (Second Edition) pertaining to batteries and the requirement for the determination, classification, and testing of all modes associated with every combination of available product configuration options (which may be more numerous than the modes associated with operation at the default settings) are not appropriate for the microwave oven test procedures. Accordingly, DOE is proposing qualifying language in the test procedure amendments at 10 CFR part 430, subpart B, appendix I, section 2.1.3 to disregard those portions of the installation instructions.
The Second Edition also contains provisions for the power supply (section 4.3) and power-measuring instruments (section 4.4). Paragraph 4.3.2 requires that the value of the harmonic content of the voltage supply be recorded during the test and reported. As described previously, paragraph 4.4.1 requires the instrument to measure the crest factor and maximum current ratio. Paragraph 4.4.3 requires the instrument to be capable of measuring the average power or integrated total energy consumption over any operator-selected time interval. DOE is aware of commercially available power measurement instruments that can perform each of these required measurements individually. However, DOE is also aware that certain industry-standard instruments, such as the Yokogawa WT210/WT230 digital power meter and possibly others, are unable to measure harmonic content or crest
The other major changes in the Second Edition related to the measurement of standby mode and off mode power consumption in covered products involve measurement techniques and specification of the stability criteria required to measure that power. The Second Edition contains more detailed techniques to evaluate the stability of the power consumption and to measure the power consumption for loads with different stability characteristics. According to the Second Edition, the user is given a choice of measurement procedures, including sampling methods, average reading methods, and a direct meter reading method. DOE evaluated these new methods in terms of test burden and improvement in results as compared to those methods adopted in the March 2011 Interim Final Rule, which were based on IEC Standard 62301 (First Edition).
In the March 2011 Interim Final Rule, DOE adopted provisions requiring that microwave oven standby mode and off mode power be measured using section 5, paragraph 5.3 of IEC Standard 62301 (First Edition). DOE also adopted additional specific methodology for microwave ovens in which power varies as a function of the time displayed. In particular, based on DOE's testing, DOE adopted a requirement for these microwave ovens to set the display time to 3:23 and allowing a 10-minute stabilization period prior to a 10-minute measurement period for the display time of 3:33 to 3:42, based on the average power approach of section 5, paragraph 5.3.2(a) of IEC Standard 62301 (First Edition). DOE stated that this method provides a valid measure of standby energy use for those microwave ovens with power consumption varying according to the time displayed on the clock. 76 FR 12825, 12838-40 (Mar. 9, 2011).
For today's supplemental notice, to determine the potential impacts of referencing methodology from IEC Standard 62301 (Second Edition) rather than from the First Edition, DOE compared the provisions allowed by each under different scenarios of power consumption stability, as discussed in the following sections.
According to section 5, paragraph 5.3.1 of IEC Standard 62301 (First Edition), after an initial stabilization period of 5 minutes, power consumption is defined as stable if it varies by less than 5 percent over a subsequent measurement period of 5 minutes. In such a case, a direct reading may be made at the end of the measurement period. Based on this methodology, which was adopted in the March 2011 Interim Final Rule for microwave ovens other than units in which power varies as a function of displayed time, the total test time would be at minimum 10 minutes (comprised of a minimum 5-minute stabilization period, followed by a minimum 5-minute period during which the stability criterion could be evaluated and a direct power reading taken.) Alternatively, the tester may select an average power or accumulated energy approach, again with a minimum 5-minute measurement period. The average power approach would simply require a different reading to be taken from the instrument (true average power instead of a direct reading of instantaneous power), while the accumulated energy approach would require the calculation of power by dividing the accumulated energy by the duration of the measurement period.
In comparison, section 5, paragraph 5.3.4 of IEC Standard 62301 (Second Edition) specifies a direct meter reading method that can be used for stable power consumption, in which a minimum 30-minute stabilization period must be observed, followed by a first power measurement. After an additional period of 10 minutes, a second power measurement is taken. If the average of the two measurements divided by the time interval between them meets certain threshold criteria, then the power consumption is considered to be the average of the two power measurements. Thus, the total test period would still be at minimum 40 minutes. DOE agrees that this method likely improves the validity of the test results, as it is a more stringent measure of the stability of the power consumption over a longer period of time than the First Edition requires. However, if the threshold criteria are not met at the end of the test, a different measurement method must be used, increasing test time and complexity. Further, the Second Edition specifies that the direct reading method shall not be used for verification purposes. Both of these qualifications potentially increase test burden as compared to the First Edition, possibly requiring the tester to conduct the more complex methodology of the methods available under the Second Edition.
DOE notes that section 5, paragraph 5.3.2 of IEC Standard 62301 (Second Edition) identifies a sampling method as the preferred means for all power consumption measurements and the fastest test method when the power is stable. For any non-cyclic power consumption, power readings are initially recorded over a period of at least 15 minutes after energizing the product. Data from the first third of the measurement period are discarded, and stability is evaluated by a linear regression through all power readings in the second two-thirds of the data. If the slope of the linear regression is less than 10 milliwatts per hour (mW/h) for input power less than or equal to 1.0 W, or less than 1 percent of the input power per hour for input power greater than 1.0 W, the power consumption is calculated as the average of the power readings during the second two-thirds of the measurement period. If the slope of the linear regression does not meet these stability criteria, the total period is continuously extended until the stability criteria are met for the second two-thirds of the data. In some cases, this is a more stringent requirement than the stability criteria of IEC Standard 62301 (First Edition). The lack of a definitive test period means that the test duration could extend past 15 minutes for certain products—up to 3 hours is allowed in the Second Edition—and could introduce added test burden as compared to the First Edition.
Section 5, paragraph 5.3 from IEC Standard 62301 (First Edition), which DOE incorporated by reference in the microwave oven test procedure in the March 2011 Interim Final Rule with clarification, specifies that either an average power method or accumulated energy approach could be used for
In contrast, the Second Edition requires the use of either a sampling method or average reading method for measuring power consumption in standby mode or off mode. The sampling method is the same as described previously, but the measurement period must be at least 60 minutes, and the cumulative average of all data points recorded during the second two-thirds of the total period must fall within a band of ±0.2 percent.
The average reading method in section 5, paragraph 5.3.3 IEC Standard 62301 (Second Edition) comprises both an average power method and accumulated energy method, either of which may be selected for unstable, non-cyclic power. For both methods, a 30-minute stabilization period is specified, followed by two comparison measurement periods of not less than 10 minutes each. The average power values, either measured directly or calculated from accumulated energy during each period, are compared to determine whether they agree to within certain threshold criteria. If the threshold is not achieved, the comparison periods are each extended in approximately equal increments until the threshold is met. If agreement is not achieved after reaching 30 minutes for each comparison period, the sampling method must then be used. Therefore, the minimum test period is 50 minutes, but may extend up to 90 minutes, at which time an additional test may be required.
DOE believes that the stability criteria in either method improves the accuracy and representativeness of the measurement as compared to the First Edition, but would cause the required test time to increase (potentially quite significantly), with a corresponding increase in manufacturer burden due to the additional time and complexity of the test conduct.
The average power approach of section 5, paragraph 5.3.2(a) in IEC Standard 62301 (First Edition) requires a measurement period of not less than 5 minutes and that at least one or more complete cycles be measured. For microwave ovens in which standby mode power consumption varies as a function of displayed time, DOE adopted in the March 2011 Interim Final Rule a requirement to set the display time to 3:23 and allowing a 10-minute stabilization period prior to a 10-minute measurement period from the display time of 3:33 to 3:42, as described previously, based on the average power approach of section 5, paragraph 5.3.2(a) of IEC Standard 62301 (First Edition). This test method requires a minimum of 20 minutes to conduct.
Under section 5, paragraph 5.3.2 of the Second Edition, testers would be required to use the sampling method for microwave ovens that consume varying power as a function of the displayed time due to the cyclic nature of this power consumption. This method specifies a measurement period of at least four complete cycles (for a total of at least 40 minutes) divided into two comparison periods, with stability criteria evaluated by calculating the difference in average power measured in each comparison period divided by the time difference of the mid-point of each comparison period. Similar to the sampling method for stable power consumption measurements described previously, this “slope” must be less than 10 mW/h for input powers less than or equal to 1 W, and less than 1 percent of the input power per hour for input powers greater than 1 W. If the appropriate stability criterion is not met, additional cycles are added to each comparison period until the criterion is achieved. Once stability has been reached, the power consumption is calculated as the average of all readings from both comparison periods. Because all of the clock displays which DOE observed to be incorporated in microwave ovens are based on a 12-hour cycle, such a product which consumes varying power as a function of the displayed time would be required under the Second Edition to be tested for a minimum of 4 cycles, or 48 hours, in addition to an initial stabilization period of not less than 10 minutes. DOE notes that this test duration would impose a greatly increased test burden on manufacturers, particularly in comparison to the adopted 10-minute methodology.
In order to further evaluate the test methodology of IEC Standard 62301 (Second Edition), DOE conducted testing on a representative sample of 26 microwave ovens. DOE conducted tests according to the sampling method in section 5, paragraph 5.3.2 of IEC Standard 62301 (Second Edition), in some cases repeating the tests to evaluate reproducibility. The results from testing, presented in Table III.2, show that, for the test units that had stable, non-cyclic power consumption, the test duration ranged from 15 minutes to 25 minutes, with an average of approximately 17 minutes. The majority of test units required the minimum test duration of 15 minutes. For units that showed a stable, cycle power consumption, DOE used the methodology adopted in the March 2011 Interim Final Rule, setting the clock display to 3:23 and allowing a 10-minute stabilization period prior to a 10-minute measurement period for the display time of 3:33 to 3:42.
DOE, in evaluating IEC Standard 62301 (Second Edition) in comparison to the First Edition, confers substantial weight to the considerable body of comments on and input to the provisions and methodology that IEC developed as part of its latest revision process. DOE recognizes that, in some cases, test burden and complexity would be increased by requiring the use of the test methods specified in the Second Edition. However, DOE believes that in most cases, this added burden on manufacturers has been sufficiently considered by the IEC voting members as being outweighed by the improved accuracy and representativeness of the resulting power consumption measurement. Furthermore, manufacturers were aware of these differences, but nevertheless overwhelmingly supported DOE's use of the Second Edition. In addition, according to AHAM, harmonizing with international test standards will reduce testing burden on microwave oven manufacturers that sell products internationally by not requiring multiple standby tests to be conducted according to different testing methods in different countries. DOE tentatively concludes that the application of the provisions of the Second Edition to power measurements in off mode and most standby modes would be appropriate, and is proposing incorporation by reference of the relevant paragraphs of section 5.3 of IEC Standard 62301 (Second Edition) in the test procedures for these products in 10 CFR part 430, subpart B, appendix I, sections 3.1.3.1 and 3.2.3.
Further, DOE observes that although the Second Edition allows the choice of multiple test methods for both stable and unstable non-cyclic power consumption, the sampling method provides for a test duration that is approximately the same or similar to the allowable alternative methods and does not require classification of the nature of the power consumption (
This supplemental notice is also proposing to amend the reference in 10 CFR 430.3 to add a reference to IEC Standard 62301 (Second Edition). DOE is not proposing to delete the reference to the First Edition in 10 CFR 430.3 because the proposed amendments in today's supplemental notice would continue to incorporate certain provisions from it as well as from the Second Edition.
DOE also notes that there are a number of editorial changes necessary in appendix I to allow for the correct referencing to the Second Edition. For example, the definition sections need to define the IEC Standard 62301 as the Second Edition instead of the First Edition. Also, there are some section numbering differences in the Second Edition which impact the text of the measurement provisions of the relevant test procedures.
In the March 2011 Interim Final Rule, DOE adopted a definition of “standby mode” based on the definitions provided in IEC Standard 62301 (FDIS), as follows:
• “Standby mode” is the condition in which an energy-using product is connected to a mains power source and offers one or more of the following user-oriented or protective functions which may persist for an indefinite time:
• A remote switch (including remote control), internal sensor, or timer to facilitate the activation of other modes (including activation or deactivation of active mode);
• And continuous functions, including information or status displays (including clocks) or sensor-based functions. 76 FR 12825, 12834 (Mar. 9, 2011).
DOE also adopted in its amendments to the test procedure the clarification, provided as a note accompanying the definition of standby mode in IEC Standard 62301 (FDIS), that a timer is a
DOE also adopted definitions of “off mode” and “active mode” based on the definitions provided in IEC Standard 62301 (FDIS), as follows:
• “Off mode” is the condition in which an energy-using product is connected to a mains power source and is not providing any standby mode or active mode function and where the mode may persist for an indefinite time. An indicator that only shows the user that the product is in the off position is included within the classification of off mode.
• “Active mode(s)” is the condition in which an energy-using product is connected to a mains power source and at least one primary function is activated.
AHAM commented that it supported DOE's proposal to adopt definitions of standby mode, off mode, and active mode based on the definitions provided in IEC Standard 62301 (FDIS), except that because the definitions in the FDIS version are identical to those in the published version of IEC Standard 62301 (Second Edition), DOE should cite the Second Edition rather than the FDIS version. (AHAM, No. 31 at p. 4) DOE notes that it did not incorporate by reference the definitions of standby mode, off mode, and active mode from IEC Standard 62301 (FDIS) in the March 2011 Interim Final Rule, but instead adopted definitions based on those definitions. 76 FR 12825, 12836 (Mar. 9, 2011). DOE agrees that the definitions in IEC Standard 62301 (FDIS) are identical to the definitions in IEC Standard 62301 (Second Edition). As a result, DOE does not believe it is necessary to propose amendments to the definitions of standby mode, off mode, and active mode in 10 CFR part 430, subpart B, appendix I, section 1, that were adopted in the March 2011 Interim Final Rule based on these comments because these definitions have the same functional equivalence to those in both IEC Standard 62301 (FDIS) and IEC Standard 62301 (Second Edition). However, DOE proposes in today's SNOPR to make non-substantive editorial changes to clarify for the reader the description of the user-oriented or protective functions associated with standby mode operation in the definition of standby mode in 10 CFR part 430, subpart B, appendix I, section 1.13.
DOE noted in the March 2011 Interim Final Rule that the definition of standby mode states that it includes user-oriented or protective functions to facilitate the activation of other modes (including activation or deactivation of active mode) by remote switch (including remote control), internal sensor, or timer. DOE stated that if the product is consuming energy to power an infrared sensor used to receive signals from a remote control (while not operating in the active mode), such a function would be considered part of standby mode, regardless of whether the remote is classified as “one-way” or “two-way,” because of the function to facilitate the deactivation of another mode by remote switch (including remote control), internal sensor, or timer. However, if a “one-way” remote control powers the product down, including turning off any infrared sensors to receive signals from a remote control, then the product would be operating in the off mode when it is powered down, given that no other standby mode functions within the product are energized. 76 FR 12825, 12836 (Mar. 9, 2011).
AHAM commented that it does not support including one-way remote controls as a feature under the definition of standby mode. AHAM stated that although EPCA defines standby mode to include activation by remote control, one-way remotes do not meet the intent of the statute. AHAM stated that a standard remote, when it powers a product “off” actually powers the product down, not off, such that it can be turned on again via remote control, and this appropriately falls under standby power. Conversely, AHAM stated that a one-way remote turns the product completely off, including turning off any infrared sensors to receive signals from a remote control, such that it cannot be turned on again through use of the remote. Thus, a one-way remote, unlike a standard remote, does not put the product into a standby mode, but instead puts the product into an off mode when it is powered down, as long as no other standby mode functions within the product are energized. AHAM stated that currently there are few, if any, one-way remotes in the United States, and that including one-way remotes in the off mode instead of in the standby mode will encourage manufacturers to design products with one-way remotes, which could result in decreased energy use. AHAM commented that DOE should include such a clarification in the definition of standby mode. (AHAM, No. 31 at p. 4)
DOE notes that if a one-way remote control powers the product down, including turning off any infrared sensors to receive signals from a remote control, then such a remote control sensor would not be facilitating the activation of other modes (including activation or deactivation of active mode), as defined under standby mode. DOE believes that the definition of standby mode clearly excludes the condition in which a one-way remote control has powered down the product, including turning off any infrared sensors to receive signals from a remote control, as long as the microwave oven does not have any other standby mode product functions energized. Under those conditions, the microwave oven would not be consuming any energy related to standby mode, and would be considered to be in off mode. As a result, DOE is not proposing amendments to the definition of standby mode in 10 CFR part 430, subpart B, appendix I, section 1 to provide such a clarification in today's SNOPR.
As discussed above in section III.C, for microwave ovens in which standby mode power consumption varies as a function of displayed time, DOE adopted in the March 2011 Interim Final Rule a requirement to set the display time to 3:23 and allowing a 10-minute stabilization period prior to a 10-minute measurement period from the display time of 3:33 to 3:42 based on the average power approach of section 5, paragraph 5.3.2(a) of IEC Standard 62301 (First Edition). 76 FR 12825, 12838-40 (Mar. 9, 2011). The 10-minute stabilization period was determined based on DOE's testing, which showed that all microwave ovens in its test sample dropped to the lower power state in less than 10 minutes, DOE stated that a requirement to set the display time to 3:23 and allowing a 10-minute stabilization period prior to a 10-minute measurement period would best balance the need for reproducibility of the test procedure with the burden placed on manufacturers.
AHAM noted that it commented in response to the July 2010 TP SNOPR that the test procedure should require that the clock be set to 3:33 minus the number of minutes needed to return to the lowest power consumption mode, and that DOE responded in the March 2011 Interim Final Rule by stating that AHAM's proposal was not sufficiently accurate or repeatable. AHAM commented that it disagrees with DOE's response. AHAM stated its proposed method provides for a more accurate measurement because the length of time to return to the lowest power consumption mode after setting the
AHAM proposed that, as a way of preventing anti-circumvention, DOE should require manufacturers to certify the number of minutes that the unit waits before returning to the lowest power consumption mode. AHAM added that if DOE does require this information, it should be treated as confidential business information. (AHAM, No. 31 at p. 5) Whirlpool supported the comments made by AHAM. (Whirlpool, No. 30 at p. 1)
DOE recognizes the merits of the method suggested by AHAM by allowing flexibility for a manufacturer to shorten or lengthen the test cycle depending on the design of their microwave oven. However, as noted in the March 2011 Interim Final Rule, DOE's testing showed that all microwave ovens in its test sample dropped to the lower-power state in less than 10 minutes. 76 FR 12825, 12839 (Mar. 9, 2011). DOE is unaware of any technical basis for a stabilization period longer than 10 minutes, and DOE believes that including a defined stabilization period will encourage manufacturers to minimize the duration of the stabilization period in their products. DOE also believes that it is important for the test procedure to be repeatable and reproducible, and to minimize burden. DOE notes that independent testing laboratories may not sufficiently understand the control logic to determine the appropriate number of minutes needed to return to the lowest power consumption mode. DOE also notes that a display may dim after a certain period of time, but a manufacturer may design a microwave oven with other features or functions that transition to a lower power consumption mode after a different amount of time that is not easily discernible. As a result, different testing laboratories may use different testing times using such a method. DOE believes that defining a specific stabilization period will increase the reproducibility of testing among laboratories. For these reasons, DOE is not proposing amendments in 10 CFR part 430, subpart B, appendix I, section 3.1.3.1 to set the time to 3:33 minus the number of minutes needed to return to the lowest power consumption mode for microwave ovens in which standby mode power consumption varies as a function of displayed time.
EPCA requires that test procedures shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. Test procedures must also not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In the March 2011 Interim Final Rule, DOE stated that the amendments it adopted in the microwave oven test procedure incorporate a test standard that is accepted internationally for measuring power consumption in standby mode and off mode (IEC Standard 62301). Based on DOE testing and analysis of IEC Standard 62301 (First Edition), DOE determined that the amendments to the microwave oven test procedure produce standby mode and off mode average power consumption measurements that represent an average use cycle both for cases in which the measured power is stable, as well as for when the measured power is unstable (
Today's supplemental proposed amendments to the DOE test procedures are based on an updated version of IEC Standard 62301, IEC Standard 62301 (Second Edition), which has been the subject of significant review and input from interested parties and, thus, continues to be an internationally accepted test standard for measuring standby mode and off mode power consumption. As discussed in section III.C of this notice, DOE believes that the provisions of IEC Standard 62301 (Second Edition) that it proposes to incorporate by reference through today's SNOPR provide a means to measure power consumption with greater accuracy and repeatability than the provisions from IEC Standard 62301 (First Edition) that were adopted in the March 2011 Interim Final Rule. DOE tentatively concludes that today's proposed amendments would also provide measurements representative of average consumer use of the product under test, even if the test conditions and procedures may not be identical to average consumer use (for example, specified display times). In particular, DOE determined that the abbreviated 10-minute test period for those microwave ovens with power consumption varying according to the time displayed on the clock, as discussed in section III.C, has been carefully designed and circumscribed in order to attain an overall calculated measurement of the energy consumption during a representative 12-hour use cycle. 76 FR 12825, 12838-40 (Mar. 9, 2011). DOE further believes that the new provisions in the applicable sections of IEC Standard 62301 (Second Edition) improve test results without undue testing burden. DOE acknowledges that certain methods from IEC Standard 62301 (Second Edition) may increase test duration somewhat, but where such an increase was deemed excessive (
Sections 6299-6305 of EPCA authorize DOE to enforce compliance with the energy and water conservation standards established for certain consumer products. (42 U.S.C. 6299-6305 (consumer products) On March 7, 2011, the Department revised, consolidated, and streamlined its existing certification, compliance, and enforcement regulations for certain consumer products and commercial and industrial equipment covered under EPCA, including microwave ovens. 76 FR 12422. These regulations are codified in 10 CFR 429.23 (conventional cooking tops, conventional ovens, microwave ovens).
The certification requirements for microwave ovens consist of a sampling plan for selection of units for testing and requirements for certification reports. Because there are no existing energy conservation standards for microwave ovens, DOE is not proposing any amendments to the certification reporting requirements for these products. However, because DOE proposes in today's SNOPR to introduce new metrics (standby mode power consumption (P
DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the March 2011 Interim Final Rule remain unchanged for this SNOPR. These determinations are set forth in the March 2011 Interim Final Rule. 76 FR 12825, 12840-42 (Mar. 9, 2011).
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the
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Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1.
2.
3.
4.
The Secretary of Energy has approved publication of this supplemental notice of proposed rule.
Energy conservation, Household appliances, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental Relations, Small businesses.
For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of title 10 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 429 continues to read as follows:
42 U.S.C. 6291-6317.
2. Section 429.23 is amended by revising paragraph (a)(2)(i) introductory text to read as follows:
(a) * * *
(2) * * *
(i) Any represented value of estimated annual operating cost, energy consumption, standby mode power consumption, off mode power consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
3. The authority citation for part 430 continues to read as follows:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
4. Section 430.2 is amended by adding the definition for “Combination oven” in alphabetical order to read as follows:
5. Section 430.3 is amended by adding paragraph (l)(2) to read as follows:
(l) * * *
(2) IEC Standard 62301 (“IEC 62301”),
6. Appendix I to Subpart B of Part 430 is amended:
a. By revising the note after the heading;
b. By revising section 1.
c. In section 2.
d. In section 3.
The revisions read as follows:
The procedures and calculations in this Appendix need not be performed to determine compliance with energy conservation standards for conventional ranges, conventional cooking tops, conventional ovens, and microwave ovens at this time. However, any representation related to standby mode and off mode energy consumption of these products made after [
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3.3.13Record the average standby mode power, P
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Pratt & Whitney JT9D-7R4D, -7R4D1, -7R4E, -7R4E1, -7R4G2, -7R4H1, and -7R4E4 turbofan engines. This proposed AD would establish a new lower life limit for high-pressure turbine (HPT) 1st stage air seals, part number (P/N) 735907, and would require removing them from service using a drawdown schedule. This proposed AD was prompted by the determination that a new lower life limit for the HPT 1st stage air seals, P/N 735907, is necessary. We are proposing this AD to prevent critical life-limited rotating engine part failure and damage to the airplane.
We must receive comments on this proposed AD by January 23, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Stephen Sheely, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803;
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received two reports of HPT 1st stage air seals, P/N 735907, found cracked by fluorescent penetrant inspection during engine overhaul. The cracks were located on the flat section of the seal, between the bolted flange and the knife edge seals. One of the air seals had accumulated 11,150 cycles-since-new (CSN), and the other air seal had accumulated 13,340 CSN. The current published life limit for these seals is 15,000 CSN. Pratt & Whitney has informed us that they are preparing to issue service information which will require reducing the published life limit from 15,000 CSN to 9,000 CSN. This condition, if not corrected, could result in critical life-limited rotating engine part failure and damage to the airplane.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require establishing a new lower life limit for HPT 1st stage air seals, P/N 735907, from 15,000 CSN, to 9,000 CSN, and would require removing them from service using a drawdown schedule.
We estimate that this proposed AD would affect 257 Pratt & Whitney JT9D-7R4D, -7R4D1, -7R4E, -7R4E1, -7R4G2, -7R4H1, and -7R4E4 turbofan engines installed on airplanes of U.S. registry. We also estimate that it would take about 28.8 work-hours per engine to perform the actions required by this AD, and that the average labor rate is $85 per work-hour. Required parts will cost about $37,200 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $10,189,536.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by January 23, 2012.
None.
This AD applies to Pratt & Whitney JT9D-7R4D, -7R4D1, -7R4E, -7R4E1, -7R4G2, -7R4H1, and -7R4E4 turbofan engines.
This AD was prompted by the determination that a new lower life limit of 9,000 cycles-since-new (CSN) for high-pressure turbine (HPT) 1st stage air seals, part number (P/N) 735907, is necessary. We are issuing this AD to prevent critical life-limited rotating engine part failure, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Remove HPT 1st stage air seals, P/N 735907, from service as follows:
(1) For air seals that have fewer than 6,500 CSN on the effective date of this AD, remove from service before exceeding 9,000 CSN.
(2) For air seals that have 6,500 CSN or more on the effective date of this AD, do the following:
(i) If the engine has a shop visit before the air seal exceeds 9,000 CSN, remove the air seal from service before exceeding 9,000 CSN.
(ii) If the engine does not have a shop visit before the air seal exceeds 9,000 CSN, remove the air seal from service at the next shop visit, not to exceed 2,500 cycles from the effective date of this AD or 15,000 CSN, whichever occurs first.
(3) Remove from service any HPT 1st stage air seal, P/N 735907, that is installed or re-installed after the effective date of this AD, before the air seal exceeds the new life limit of 9,000 CSN.
After the effective date of this AD, do not install or reinstall into any engine any HPT 1st stage air seal, P/N 735907, that exceeds the new life limit of 9,000 CSN.
For the purposes of this AD, an engine shop visit is the induction of an engine into the shop after the effective date of this AD, where the separation of a major engine flange occurs, except that the following maintenance actions, or any combination, are not considered engine shop visits:
(1) Introduction of an engine into a shop solely for removal of the compressor top or bottom case for airfoil maintenance or variable stator vane bushing replacement.
(2) Introduction of an engine into a shop solely for removal or replacement of the stage 1 fan disk.
(3) Introduction of an engine into a shop solely for replacement of the turbine rear frame.
(4) Introduction of an engine into a shop solely for replacement of the accessory gearbox or transfer gearbox, or both.
(5) Introduction of an engine into a shop solely for replacement of the fan forward case.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Stephen Sheely, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803;
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A319, A320, and A321 airplanes that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Several cases of corrosion of the Main Landing Gear (MLG) support Rib 5 fitting lug bores have been reported on A320 family aeroplanes. * * * If not detected, the cracking may lead to the complete failure of the fitting and thus could affect the structural integrity of the MLG installation.
EASA AD 2007-0213 was issued to address this condition * * *.
After that AD was issued, a case of Rib 5, ruptured at the 4 o'clock position, was discovered on an aeroplane on which the terminating action of EASA AD 2007-0213 had already been embodied * * *.
Investigation of that case revealed that corrosion damage and cracking that should have been removed by repair machining was below the level of detectability of the Non Destructive Test (NDT) technique that cleared the surfaces prior to bush installation.
We must receive comments on this proposed AD by January 9, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51;
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356;
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On March 31, 2008, we issued AD 2008-08-04, Amendment 39-15456 (73 FR 19975, April 14, 2008). That AD required actions intended to address an unsafe condition on Airbus Model A318, A319, A320, and A321 airplanes.
Since we issued AD 2008-08-04, Amendment 39-15456 (73 FR 19975, April 14, 2008), we have been advised that the existing AD is inadequate to address the unsafe condition. We have determined that certain airplanes need additional detailed inspections for cracks of the MLG support 5 fitting, and repair of any cracks found. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0011, dated January 21, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Several cases of corrosion of the Main Landing Gear (MLG) support Rib 5 fitting lug bores have been reported on A320 family aeroplanes. In some instances, corrosion pits caused the cracking of the forward lug (sometimes through its complete thickness). If not detected, the cracking may lead to the complete failure of the fitting and thus could affect the structural integrity of the MLG installation.
EASA AD 2007-0213 [dated August 7, 2007, which corresponds to FAA AD 2008-08-04, Amendment 39-15456 (73 FR 19975, April 14, 2008)] was issued to address this condition and required a repetitive inspection program of the MLG support Rib 5 fitting forward lugs and, as terminating
After that [EASA] AD was issued, a case of Rib 5, ruptured at the 4 o'clock position, was discovered on an aeroplane on which the terminating action of EASA AD 2007-0213 had already been embodied in accordance with Airbus SB A320-57-1118.
Investigation of that case revealed that corrosion damage and cracking that should have been removed by repair machining was below the level of detectability of the Non Destructive Test (NDT) technique that cleared the surfaces prior to bush installation.
This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.
It has also been established that all A318 aeroplanes have had Airbus modification 32025 embodied in production on both LH and RH wings, which is a one-way interchangeable (non-reversible) modification. Consequently, the unsafe condition addressed by AD 2007-0231 cannot occur or develop on those aeroplanes.
For the reasons described above, this AD, which supersedes EASA AD 2007-0213:
Airbus has issued Mandatory Service Bulletins A320-57-1118, Revision 04, dated June 4, 2008; and A320-57A1166, dated January 12, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 740 products of U.S. registry.
The actions that are required by AD 2008-08-04, Amendment 39-15456 (73 FR 19975, April 14, 2008), and retained in this proposed AD take about 73 work-hours per product, at an average labor rate of $85 per work hour. Required parts would cost about $3,860 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, the estimated cost of the currently required actions is $10,065 per product.
We estimate that it would take about 3 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the new actions in this proposed AD on U.S. operators to be up to $188,700, or $255 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
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); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-15456 (73 FR 19975, April 14, 2008) and adding the following new AD:
(a) We must receive comments by January 9, 2012.
(b) This AD supersedes AD 2008-08-04, Amendment 39-15456 (73 FR 19975, April 14, 2008).
(c) This AD applies to Airbus Model A319-111, A319-112, A319-113, A319-114, A319-115, A319-131, A319-132, A319-133, A320-111, A320 -211, A320 -212, A320-214, A320-231, A320-232, A320-233, A321-111, A321-112, A321-131, A321-211, A321-212, A321-213, A321-231, and A321-232 airplanes; certificated in any category, except airplanes on which Airbus modification 32025 has been accomplished in production.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
Several cases of corrosion of the Main Landing Gear (MLG) support Rib 5 fitting lug bores have been reported on A320 family aeroplanes. * * * If not detected, the cracking may lead to the complete failure of the fitting and thus could affect the structural integrity of the MLG installation.
EASA AD 2007-0213 was issued to address this condition * * *.
After that [EASA] AD was issued, a case of Rib 5, ruptured at the 4 o'clock position, was discovered on an aeroplane on which the terminating action of EASA AD 2007-0213 had already been embodied * * *.
Investigation of that case revealed that corrosion damage and cracking that should have been removed by repair machining was below the level of detectability of the Non Destructive Test (NDT) technique that cleared the surfaces prior to bush installation.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 8 days after June 7, 2006 (the effective date of AD 2006-11-04, Amendment 39-14608 (71 FR 29578, May 23, 2006)), or before further flight after a hard landing, whichever is first: Perform a detailed inspection for cracking in the forward lug of the support rib 5 fitting of the left- and right-hand MLG, and, if any crack is found, replace the MLG fitting with a new fitting before further flight, in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent); or in accordance with the actions specified in the Airbus A318/A319/A320/A321 Nondestructive Testing Manual, Chapter 51-90-00, Revision dated February 1, 2003. Repeat the inspection thereafter at intervals not to exceed 8 days, or before further flight after a hard landing, whichever is first. As of May 19, 2008 (the effective date of AD 2008-08-04, Amendment 39-15456 (73 FR 19975, April 14, 2008)), the repetitive inspections required by paragraph (k) of this AD must be accomplished in lieu of the repetitive inspections required by this paragraph.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses,
(h) Performing an ultrasonic inspection for cracking in the forward lug of the support rib 5 fitting of the left- and right-hand MLG in accordance with a method approved by the Manager, International Branch, ANM-116, or the EASA (or its delegated agent; or in accordance with the Airbus A318/A319/A320/A321 Nondestructive Testing Manual, Chapter 57-29-03, Revision dated February 1, 2005 (for Model A318, A319, and A320 airplanes), or Chapter 57-29-04, Revision dated May 1, 2005 (for Model A321 airplanes); or in accordance with Task 57-29-03-270-801-A-01, Inspection of the Gear Rib Forward and Aft Lug Attachment for the Main Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 Nondestructive Testing Manual, Revision 89, dated August 1, 2011; as applicable; is an acceptable alternative method of compliance for the initial and repetitive inspections required by paragraph (g) of this AD. As of the effective date of this AD, only Task 57-29-03-270-801-A-01, Inspection of the Gear Rib Forward and Aft Lug Attachment for the Main Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 Nondestructive Testing Manual, Revision 89, dated August 1, 2011, may be used.
(i) Repair of the forward lugs of the support rib 5 fitting of the left- and right-hand MLG, done before the effective date of this AD in accordance with a method approved by the Manager, International Branch, ANM-116; or the EASA (or its delegated agent); or in accordance with Airbus A319 Structural Repair Manual (SRM), Paragraph 5.C., 57-26-13, Revision November 1, 2004; Airbus A320 SRM, Paragraph 5.D, 57-26-13, Revision November 1, 2004; or Airbus A321 SRM, Paragraph 5.D, 57-26-13, Revision February 1, 2005; as applicable; constitutes terminating action for the requirements of paragraphs (g), (h), (k), (l), and (m) of this AD.
(j) To identify affected airplanes in paragraphs (k), (m), and (o) of this AD, this AD refers to the following conditions:
(1) Airplanes on which the modification of the MLG rib bushes as specified in Airbus Service Bulletin A320-57-1118 has been done.
(2) Airplanes on which a repair of the MLG support rib 5 fitting specified in Airbus A319 Structural Repair Manual (SRM) 57-26-13, paragraph 5.C; or Airbus A320/A321 SRM 57-26-13, paragraph 5.D; or Airbus Repair Instruction R572-58376, Issue C, dated October 15, 2000; has been done.
(3) Airplanes on which replacement in service of the MLG support rib 5 as specified in Airbus Repair Instructions R572-58507 and R572-58209, or Airbus Repair Instructions R572-45020 and R572-45019, as applicable, has been done.
(k) For airplanes on which none of the actions specified in paragraphs (j)(1), (j)(2), and (j)(3) of this AD have been done: At the applicable time specified in table 1 of this AD, or before further flight after a hard landing, whichever is first, do a visual inspection or ultrasonic inspection for cracking in the forward lug of the support rib 5 fitting of the left and right MLG, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1138, Revision 01, dated October 27, 2006. Repeat the inspection thereafter at the applicable interval specified in table 1 of this AD or before further flight after a hard landing, whichever is first, until the modification required by paragraph (m) of this AD has been accomplished. Accomplishing the initial inspection terminates the requirements of paragraph (g) of this AD.
(l) If any cracking is found during any inspection required by paragraph (k) of this AD: Before further flight, repair or replace the cracked MLG fitting using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, or the EASA (or its delegated agent).
(m) Except for airplanes on which the actions specified in paragraph (j)(3) have been done: Within 60 months after May 19, 2008, modify the rib bushings of the left and right MLG, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-57-1118, Revision 03, dated April 23, 2007; or Revision 04, dated June 4, 2008. Accomplishing this modification terminates the requirements of paragraphs (g) and (k) of this AD, and then the requirements of paragraph (o) of this AD must be done.
(n) Modifying the lugs of the support rib 5 fitting of the left and right MLG is acceptable for compliance with the requirements of paragraph (m) of this AD if done before May 19, 2008, in accordance with one of the following service bulletins: Airbus Service Bulletin A320-57-1118, dated September 5, 2002; Revision 01, dated August 28, 2003; or Revision 02, dated August 2, 2006.
(o) For airplanes on which the actions specified in paragraph (j)(1) or (j)(2) of this AD have been done: At the later of the times specified in paragraphs (o)(1) and (o)(2) of this AD, do a detailed inspection for cracks of the forward lug of each left-hand and right-hand MLG support rib 5 fitting, in accordance with Airbus Service Bulletin A320-57A1166, dated January 12, 2011. Repeat the inspection thereafter at intervals not to exceed 500 flight cycles.
(1) Within 2,000 flight cycles after accomplishing the modification specified in paragraph (j)(1) or (m) of this AD, or the repair specified in paragraph (j)(2) of this AD, as applicable.
(2) Within 250 flight cycles after the effective date of this AD, without exceeding 3 months after the effective date of this AD.
(p) If any crack is detected during any inspection required by paragraph (o) of this AD: Before further flight, repair using a method approved by either the Manager, International Branch, ANM-116, FAA; or EASA (or its delegated agent).
(q) Replacement of a MLG support rib 5 fitting at any position (LH or RH) as specified in paragraph (j)(3) of this AD terminates the requirements of this AD for the MLG support rib 5 fitting at that position.
This AD differs from the MCAI and/or service information as follows: Although the MCAI or service information allows further flight after cracks are found during compliance with certain required actions, paragraphs (l) and (p) of this AD require repair or replacement before further flight.
(r) The following provisions also apply to this AD:
(1)
(2)
(s) For related information, refer to MCAI EASA Airworthiness Directive 2011-0011, dated January 21, 2011; Airbus Service Bulletin A320-57-1118, Revision 03, dated April 23, 2007, Airbus Mandatory Service Bulletin A320-57-1118, Revision 04, dated June 4, 2008; Airbus Service Bulletin A320-57-1138, Revision 01, dated October 27, 2006; Airbus A319 Structural Repair Manual (SRM), Paragraph 5.C., 57-26-13, Revision dated November 1, 2004; Airbus A320 SRM, Paragraph 5.D., 57-26-13, Revision dated November 1, 2004; Airbus A321 SRM, Paragraph 5.D., 57-26-13, Revision dated February 1, 2005; and Task 57-29-03-270-801-A-01, Inspection of the Gear Rib Forward and Aft Lug Attachment for the Main Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 Nondestructive Testing Manual, Revision 89, dated August 1, 2011.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Pratt
We must receive comments on this proposed AD by January 23, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: (860) 565-8770; fax: (860) 565-4503. You may review copies of the referenced 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
Stephen Sheely, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: (781) 238-7750; fax: (781) 238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of five engine in-flight shutdowns and seven unplanned engine removals due to clogging of No. 4 bearing compartment oil pressure and scavenge tubes. Investigation has revealed that following all engine shutdowns, excessive heat is conducting into the No. 4 bearing compartment and into the oil pressure and scavenge tubes that pass through the turbine exhaust case struts. This excessive heat causes oil coking and oil flow restriction in the pressure and scavenge tubes and oil nozzle. This condition, if not corrected, could lead to an engine fire, a fractured fan drive shaft, and damage to the airplane.
We reviewed Pratt & Whitney Alert Service Bulletin (SB) No. PW4ENG-A72-436, Revision 6, dated September 30, 1999. The SB describes procedures for initial and repetitive inspection and cleaning of the No. 4 bearing compartment. We also reviewed Pratt & Whitney SB No. PW4ENG-72-472, Revision 5, dated April 14, 1998, and SB No. PW4ENG-79-76, Revision 4, dated February 14, 2002. The SBs describe procedures for modifications to stop buildup of coking in the No. 4 bearing compartment, and for rerouting of the No. 4 bearing pressure and scavenge tubes. The rerouted tubes are then located below the engine centerline which eliminates the coking problem.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD would affect 44 Pratt & Whitney PW4050, PW4052, PW4056, PW4056(-3), PW4156, PW4060, PW4060(-3), PW4060A, PW4152, PW4152(-3), PW4156A, PW4158, PW4158(-3), PW4460, PW4460(-3), PW4462, and PW4462(-3) turbofan engines installed on airplanes of U.S. registry. We also estimate that it would take about 8 work-hours per engine to perform an inspection and cleaning of the No. 4 bearing compartment, about 7 work-hours per engine to perform the modification to stop buildup of coking in the No. 4 bearing compartment, and about 33.7 work-hours per engine to perform the rerouting of the No. 4 bearing pressure and scavenge tubes. The average labor rate is $85 per work-hour. Required parts would cost about $69,322 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $3,232,306.
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
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by January 23, 2012.
None.
This AD applies to all Pratt & Whitney PW4050, PW4052, PW4056, PW4056(-3), PW4156, PW4060, PW4060(-3), PW4060A, PW4152, PW4152(-3), PW4156A, PW4158, PW4158(-3), PW4460, PW4460(-3), PW4462, and PW4462(-3) turbofan engines.
This AD was prompted by reports of five engine in-flight shutdowns and seven unplanned engine removals due to clogging of No. 4 bearing compartment oil pressure and scavenge tubes. We are issuing this AD to prevent an engine fire, a fractured fan drive shaft, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 1,000 cycles-in-service (CIS) after the effective date of this AD, initially inspect and clean the No. 4 bearing compartment in accordance with Accomplishment Instructions, paragraphs 2.A. through 2.A.(4)(b)3 of Pratt & Whitney Alert Service Bulletin No. PW4ENG-A72-436, Revision 6, dated September 30, 1999.
(2) Thereafter, within every additional 1,000 CIS, perform the inspection and cleaning specified in paragraph (f)(1) of this AD.
(1) At the next engine visit to a maintenance facility that is capable of performing the following on-wing method or in-shop method of modification to the No. 4 bearing compartment, but not to exceed 5 years after the effective date of this AD, do the following:
(i) Replace the No. 4 bearing packing transfer tube assembly;
(ii) Replace the No. 4 bearing internal scavenge tube assembly;
(iii) Remove the No. 4 bearing shield, and the No. 4 bearing shield option; and
(iv) Install new No. 4 bearing shield options.
(2) For doing the on-wing method of the modification, do the work in accordance with Accomplishment Instructions, Paragraphs 2.A. through 2.A.(9)(a)3d of Pratt & Whitney Service Bulletin (SB) No. PW4ENG-72-472, Revision 5, dated April 14, 1998.
(3) For doing the in-shop method of the modification, do the work in accordance with Paragraphs 2.B. through 2.B.(2)(f)2d of Pratt & Whitney SB No. PW4ENG-72-472, Revision 5, dated April 14, 1998.
(1) At the next shop visit at which the engine is sufficiently disassembled to perform the rerouting, but not to exceed 5 years after the effective date of this AD, do the following:
(i) Modify the turbine exhaust case to relocate the No. 4 bearing pressure and scavenge tube ports;
(ii) Replace the internal No. 4 bearing pressure and scavenge tubes;
(iii) Modify or replace the turbine case cooling brackets to support the new No. 4 bearing pressure and scavenge tubes;
(iv) Replace the turbine case manifolds as necessary; and
(v) Install the new brackets and clamps to support the new routing configuration.
(2) Do the work specified in paragraph (h) of this AD in accordance with Accomplishment Instructions paragraph 2 of Pratt & Whitney SB No. PW4ENG-79-76, Revision 4, dated February 14, 2002.
Performing the modifications specified in both paragraphs (g) and (h), of this AD is terminating action to the repetitive inspections and cleanings specified in paragraph (f)(2) of this AD.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Stephen Sheely, Aerospace Engineer, Engine & Propeller Directorate, FAA, 12 New England Executive Park, Burlington, MA 01803;
(2) For service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; telephone: (860) 565-8770; fax: (860) 565-4503. You may review copies of the referenced 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.
Drug Enforcement Administration (DEA), Department of Justice.
Notice of proposed rulemaking.
This Notice of Proposed Rulemaking (NPRM) proposes to classify the following two steroids as “anabolic steroids” under the Controlled Substances Act (CSA): prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) and methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one). The Drug Enforcement Administration (DEA) believes that this action is necessary to prevent the abuse and trafficking of
Electronic comments must be submitted and written comments must be postmarked on or before January 23, 2012. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “Docket No. DEA-341” on all electronic and written correspondence. DEA encourages all comments be submitted electronically through
Rhea D. Moore, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone (202) 307-7165.
If you want to submit personal identifying information (such as your name, address,
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personal identifying information and confidential business information identified and located as set forth above will be redacted, and the comment, in redacted form, will be posted online and placed in the DEA's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information” paragraph.
On November 29, 1990, the President signed into law the Anabolic Steroids Control Act of 1990 (Title XIX of Pub. L. 101-647), which became effective February 27, 1991. This law established and regulated anabolic steroids as a class of drugs under Schedule III of the CSA. As a result, a new anabolic steroid is not scheduled according to the procedures set out in 21 U.S.C. 811, but can be administratively classified as an anabolic steroid through the rulemaking process by adding the steroid to the regulatory definition of an anabolic steroid in 21 CFR 1300.01(b)(4).
On October 22, 2004, the President signed into law the Anabolic Steroid Control Act of 2004 (Pub. L. 108-358), which became effective on January 20, 2005. Section 2(a) of the Anabolic Steroid Control Act of 2004 amended 21 U.S.C. 802(41)(A) by replacing the existing definition of “anabolic steroid.” The Anabolic Steroid Control Act of 2004 classifies a drug or hormonal substance as an anabolic steroid if the following four criteria are met: (A) The substance is chemically related to testosterone; (B) the substance is pharmacologically related to testosterone; (C) the substance is not an estrogen, progestin, or a corticosteroid; and (D) the substance is not dehydroepiandrosterone (DHEA). Any substance that meets the criteria is considered an anabolic steroid and must be listed as a Schedule III controlled substance. DEA believes that prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) and methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one) meet this definition of “anabolic steroid,” and is proposing that they be added to the list of anabolic steroids in 21 CFR 1300.01(b)(4).
Anabolic steroids are a class of drugs structurally related to the endogenous hormone testosterone that exert androgenic (masculinizing) as well as anabolic (body building) effects. These effects are mediated primarily through binding of the anabolic steroid to the androgen receptor in target tissues (Evans, 2004). Anabolic effects include promotion of protein synthesis in skeletal muscle and bone, while the androgenic effects are characterized by the development of male secondary sexual characteristics such as hair growth, deepening of the voice, glandular activity, thickening of the skin, and central nervous system effects, to name a few (Kicman, 2008). Anabolic efficacy is characterized by positive nitrogen balance and protein metabolism, resulting in increases in protein synthesis and lean body mass (Evans, 2004). These effects often come at a cost to the healthy individual who experiences clear physical and psychological complications (Trenton and Currier, 2005; Brower, 2002; Hall
In the United States, only a small number of anabolic steroids are approved for either human or veterinary use. Approved medical uses for anabolic steroids include treatment of androgen deficiency in hypogonadal males, adjunctive therapy to offset protein catabolism associated with prolonged administration of corticosteroids, treatment of delayed puberty in boys, treatment of metastatic breast cancer in women, and treatment of anemia associated with specific diseases (
Adverse health effects are associated with abuse of anabolic steroids and
A review of the scientific literature finds adverse health effects including liver toxicity with renal failure reported in conjunction with methasterone abuse (Shah
DEA is proposing by this NPRM to classify prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) and methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one) as anabolic steroids under the definition set forth under 21 U.S.C. 802(41)(A). As noted previously, a drug or hormonal substance is classified as an anabolic steroid by meeting the following four definitional requirements: (A) The substance is chemically related to testosterone; (B) the substance is pharmacologically related to testosterone; (C) the substance is not an estrogen, progestin, or corticosteroid; and (D) the substance is not DHEA.
To classify a substance as an anabolic steroid, a substance must be chemically related to testosterone. A structure activity relationship (SAR) evaluation for each substance compared the chemical structure of the steroid to that of testosterone. Substances with a structure similar to that of testosterone are predicted to possess comparable pharmacological and biological activity.
Prostanozol is also known by the following name: 17β-hydroxy-5α-androstano[3,2-c]pyrazole. DEA determined that the chemical structure of prostanozol is similar to testosterone, differing by only the attachment of a pyrazole ring at carbon 2 (C2) and carbon 3 (C3) positions of the androstane skeleton, replacing the C3-keto group and the lack of a double bond between carbon 4 (C4) and carbon 5 (C5) positions. Similar modifications to testosterone's chemical structure have been documented and, in general, they have been found to be well tolerated, displaying both anabolic and androgenic activity (Fragkaki
Methasterone is known by the following chemical names: 2α,17α-dimethyl-5α-androstan-17β-ol-3-one; 2α,17α-dimethyl-17β-hydroxy-5α-androstan-3-one; 17α-methyl-drostanolone; methasteron; methyldrostanolone; 2α,17α-dimethyldihydrotestosterone; and 2α,17α-dimethyl-etiocholan-17β-ol-3-one. DEA has determined that the chemical structure of methasterone is chemically related to testosterone. The chemical structure of methasterone differs from testosterone by the following three chemical groups: an alpha methyl group at carbon 17 (C17), an alpha methyl group at C2, and the lack of a double bond between spanning C4 and C5. Removal of the C4-C5 double bond (A-ring) and methylation at the C2 and C17 positions has been shown to increase anabolic activity (Zaffroni, 1960; Fragkaki
A substance must also be pharmacologically related to testosterone (
Castrated male rats are administered the steroid for a number of days, then the rats are euthanized and the previously described tissues are excised and weighed. Tissue weights from the three animal test groups are compared, castrated animals alone, castrated animals receiving the steroid, and healthy intact animals (control), to assess anabolic and androgenic activity. A reduction in tissue weights relative to the control group suggests a lack of androgenic and/or anabolic activity. An increase in tissue weights relative to the castrated rats receiving no steroid suggests an androgenic and/or anabolic effect.
Studies used to evaluate anabolic steroids are the androgen receptor binding assay and the androgen receptor transactivation assay. Both are well-established and provide significant utility in evaluating steroids for affinity to their biological target and the modulation of activity. The androgen receptor binding assay provides specific detail as to the affinity of a steroid for the androgen receptor (biological target of anabolic steroids). To assess further whether the steroid is capable of activating the androgen receptor, the androgen receptor transactivation assay evaluates the binding of a steroid to the androgen receptor and subsequent interaction with DNA. In this study, transcription of a reporter gene provides information as to a steroid's ability to modulate a biological event. This activity measurement provides information as to the potency of a steroid to bind to a receptor and either initiate or inhibit the transcription of the reporter gene. The androgen receptor binding assay and androgen receptor transactivation assay are highly valuable tools in assessing the potential activity of a steroid and comparing the activity to testosterone.
DEA reviewed the published scientific literature, and pharmacological studies were undertaken to collect additional information on prostanozol and methasterone in several different androgenic and anabolic activity assays.
Findings from these studies indicate that in addition to being structurally similar to testosterone, prostanozol and methasterone have similar pharmacological activity as testosterone.
The chemical synthesis and anabolic and androgenic effects of prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) were published in 1961 (Clinton
To build on these findings, a pharmacological study
The synthesis of methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one) was reported in 1956 and the anabolic activity in 1959 (Ringold and Rosenkranz, 1956; Ringold
Additional pharmacological studies were undertaken to further evaluate the androgenic and anabolic effects of methasterone.
DEA has determined that prostanozol and methasterone are unrelated to estrogens, progestins, and corticosteroids. DEA evaluated the SAR for each of the substances. The chemical structure of each substance was
Dehydroepiandrosterone, also known as DHEA, is exempt from control as an anabolic steroid by definition (21 U.S.C. 802(41)(A)). Prostanozol and methasterone are not dehydroepiandrosterone and therefore, are not exempt from control on this basis.
Therefore, based on the above, DEA concludes that prostanozol and methasterone meet the CSA definition of “anabolic steroid” because each substance is: (A) Chemically related to testosterone; (B) pharmacologically related to testosterone; (C) not an estrogen, progestin, or a corticosteroid; and (D) not DHEA (21 U.S.C. 802(41)). All anabolic steroids are classified as Schedule III controlled substances (21 U.S.C. 812). Once a substance is determined to be an anabolic steroid, DEA has no discretion regarding the scheduling of these substances. As discussed further below, all requirements pertaining to controlled substances in Schedule III would pertain to these substances.
If this rulemaking is finalized as proposed, DEA will classify prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) and methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one) as Schedule III anabolic steroids. If classified as Schedule III anabolic steroids, any person who manufactures, distributes, dispenses, imports, or exports prostanozol or methasterone or who engages in research or conducts instructional activities with respect to these two substances would be required to obtain a Schedule III registration in accordance with the CSA and its implementing regulations. Manufacturers and importers of these two substances would be required to register with DEA and would be permitted to distribute these substances only to other DEA registrants. Only persons registered as dispensers would be allowed to dispense these substances to end users. The CSA defines a practitioner as “a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.” 21 U.S.C. 802(21). At present, there are no approved medical uses for these two substances. Until a manufacturer applies to the FDA and gains approval for products containing these substances, no person may dispense them in response to a prescription.
Manufacture, import, export, distribution, or sale of prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) and methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one) except by DEA registrants, would become a violation of the CSA that may result in imprisonment and fines (see,
In addition, under the CSA, these two substances could be imported only for medical, scientific, or other legitimate uses (21 U.S.C. 952(b)) under an import declaration filed with DEA (21 CFR 1312.18). Importation of these substances would be illegal unless the person importing these substances is registered with DEA as an importer or researcher and files the required declaration for each shipment. An individual who purchases either of these substances directly from foreign companies and has them shipped to the United States will be considered to be importing even if the steroids are intended for personal use. Illegal importation of these substances would be a violation of the CSA that may result in imprisonment and fines (21 U.S.C. 960).
Upon consideration of public comments from this NPRM, DEA may issue a final rule classifying prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole) and methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one) as anabolic steroids. If classified as anabolic steroids, prostanozol and methasterone would become subject to CSA regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, dispensing, importation, and exportation of a Schedule III controlled substance, including the following:
If this regulation is finalized as proposed, persons who possess substances that become classified as anabolic steroids and who wish to dispose of them rather than becoming registered to handle them should contact their local DEA Diversion field office for assistance in disposing of these substances legally. The DEA Diversion field office will provide the person with instructions regarding the disposal. A list of local DEA Diversion field offices may be found at
The Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612). DEA is not able to determine whether this regulation, if promulgated as a Final Rule, will not have a significant economic impact on a substantial number of small entities. DEA has not identified any company based in the United States that manufactures or distributes these substances. Thus, DEA does not believe this proposed rule would have a significant economic impact on a substantial number of small entities. Because DEA is unable to determine whether this regulation as proposed would have a significant economic impact on a substantial number of small entities, DEA seeks comment on whether this regulation, if promulgated as a Final Rule, will have a significant economic impact on a substantial number of small entities.
As of March 2010, DEA had identified approximately 75 dietary supplements that were currently or had been promoted for building muscle and increasing strength that purported to contain prostanozol or methasterone. Thirteen dietary supplements were purported to contain prostanozol and 62 dietary supplements were purported to contain methasterone. These dietary supplements are marketed and sold over the Internet.
The manufacturers and distributors of dietary supplements purported to contain prostanozol and methasterone also sell a variety of other dietary supplements. DEA has identified a substantial number of Internet distributors that sell these dietary supplements. However, these distributors also sell a variety of other nutritional products. Without information on the percentage of revenues derived from these dietary supplements, DEA is not able to determine the economic impact of the removal of these dietary supplements alone on the business of the firms. These steroids have been the focus of warning letters issued by the FDA. However, products continue to be marketed despite these warnings. DEA has not been able to identify any chemical manufacturers that are currently using these substances as intermediates in their manufacturing process(es).
As of March 2010, DEA had identified 13 chemical manufacturers and distributors that sell at least one of the two steroids addressed in this NPRM. Most of these companies are located in China and sell a variety of other anabolic steroids. DEA notes that, as the vast majority of entities handling these substances are Internet based, it is virtually impossible to accurately quantify the number of persons handling these substances at any given time. DEA has not identified any company based in the United States that manufactures or distributes these substances. DEA notes, upon placement into Schedule III, these substances may be used for analytical purposes.
This rulemaking has been drafted in accordance with the principles of Executive Order 12866, 1(b), as reaffirmed by Executive Order 13563. This rule is not a significant regulatory action but has been reviewed by the Office of Management and Budget. As discussed above, the effect of this rule would be to remove products containing these substances from the over-the-counter marketplace. DEA has no basis for estimating the size of the market for these products. DEA notes, however, that virtually all of the substances are imported. According to U.S. International Trade Commission data, the import value of all anabolic steroids in 2009 was $5.9 million. These two substances would be a subset of those imports. The total market for products containing these substances, therefore, is probably quite small. Moreover, DEA believes that the importation of these two substances is for illegitimate purposes.
The benefit of controlling these substances is to remove from the marketplace substances that have dangerous side effects and no legitimate medical use in treatment in the United States. As discussed in detail above, these substances can produce serious health effects in adolescents and adults. If medical uses for these substances are developed and approved, the drugs would be available as Schedule III controlled substances in response to a prescription issued by a medical professional for a legitimate medical purpose. Until that time, however, this action would bar the importation, exportation, and sale of these two substances except for legitimate research or industrial uses.
This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.
This rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.
This proposed rule will not have Tribal implications and will not impose substantial direct compliance costs on Indian Tribal governments.
This rule proposes to regulate two anabolic steroids, which are neither approved for medical use in humans nor approved for administration to cattle or
This rule will not result in the expenditure by state, local, and Tribal governments, in the aggregate, or by the private sector, of $136,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532.
Chemicals, Drug traffic control.
For the reasons set out above, 21 CFR part 1300 is proposed to be amended as follows:
1. The authority citation for part 1300 continues to read as follows:
21 U.S.C. 802, 821, 829, 871(b), 951, 958(f).
2. Section 1300.01 is proposed to be amended by:
A. Redesignating paragraphs (b)(4)(xxxii) through (b)(4)(lxiii) as (b)(4)(xxxiii) through (b)(4)(lxiv),
B. Adding a new paragraph (b)(4)(xxxii),
C. Further redesignating newly designated paragraphs (b)(4)(lviii) through (b)(4)(lxiv) as (b)(4)(lix) through (b)(4)(lxv), and
D. Adding new paragraph (b)(4)(lviii).
The additions read as follows:
(b) * * *
(4) * * *
(xxxii) Methasterone (2α,17α-dimethyl-5α-androstan-17β-ol-3-one)
(lviii) Prostanozol (17β-hydroxy-5α-androstano[3,2-c]pyrazole)
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations under section 382 of the Internal Revenue Code (Code). These proposed regulations provide guidance regarding the application of the segregation rules to public groups under section 382 of the Code. These regulations affect corporations.
Written or electronic comments and requests for a public hearing must be received by February 21, 2012.
Send submissions to: CC:PA:LPD:PR (REG-149625-10), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-149625-10), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Stephen R. Cleary, (202) 622-7750; concerning submission of comments or to request a public hearing, Oluwafunmilayo (Funmi) P. Taylor, (202) 622-7180 (not toll-free numbers).
Section 382 imposes a limitation on a corporation's use of net operating loss carryovers following a change in ownership. The legislative history explains that a limitation is necessary following a change in ownership because new shareholders otherwise would have an opportunity to contribute income-producing assets (or divert income opportunities) to the corporation, thus inappropriately accelerating the use of net operating loss carryovers. The section 382 limitation is intended to prevent a corporation from obtaining greater loss utilization than it could have achieved absent a change in ownership. S. Rep. No. 99-313 at 232 (1986).
A loss corporation has an ownership change if the percentage of stock of a loss corporation that is owned by one or more 5-percent shareholders has increased by more than 50 percentage points over the lowest percentage of stock of the loss corporation owned by such shareholders at any time during the testing period (generally, a three-year period). For purposes of section 382, the attribution rules of section 318(a)(2) apply, without limitation, to treat individuals as the owners of loss corporation stock. Pursuant to section 382(g)(4)(A), individual shareholders who own less than five percent of a loss corporation are aggregated and treated as a single 5-percent shareholder (a public group).
The regulations extend the public group concept to situations in which a loss corporation is owned by one or more entities, as defined in § 1.382-3(a) (generally, partnerships, corporations, estates, and trusts). If an entity directly or indirectly owns five percent or more of the loss corporation, that entity has its own public group if its owners who are not 5-percent shareholders own, in the aggregate, five percent or more of the loss corporation. (Such an entity is referred to as a 5-Percent Entity in this preamble.)
The segregation rules, which are generally contained in § 1.382-2T(j), and the exceptions thereto, which are generally contained in § 1.382-3(j), apply to certain transactions affecting ownership by the loss corporation's direct public group and by the public groups of a 5-Percent Entity. The application of the segregation rules results in the creation of a new public group in addition to the one (or more) that existed previously. That new group is treated as a new 5-percent shareholder that increases its ownership interest in the loss corporation.
Section 382(g)(4)(B) mandates application of the segregation rules to transactions constituting equity structure shifts of the loss corporation. Generally, equity structure shifts are acquisitive asset reorganizations and recapitalizations under section 368. Section 382(g)(3)(B) provides regulatory authority to treat public offerings and similar transactions as equity structure shifts. Pursuant to that authority, the current segregation rules, subject to the cash issuance and small issuance exceptions (described in this preamble), treat issuances of stock under section 1032, redemptions, and redemption-like transactions as segregation events. The segregation rules also apply to transfers of loss corporation stock by an individual 5-percent shareholder to public shareholders and a 5-Percent Entity's transfer of loss corporation stock to public shareholders.
The small issuance and cash issuance exceptions exempt certain amounts of stock issuances from the segregation rules. Generally, the small issuance exception exempts the total amount of stock issued during a taxable year to the extent it does not exceed 10 percent of the total value of the corporation's
Notice 2010-49, 2010-27 I.R.B. 10, invited public comment relating to possible modifications to the regulations under section 382 regarding the treatment of shareholders who are not 5-percent shareholders (Small Shareholders). See § 601.601(d)(2)(ii)(b).
Notice 2010-49 describes two general approaches—the Ownership Tracking Approach and the Purposive Approach—and sets forth some of the policy considerations underlying each approach. Both approaches recognize that a primary abuse section 382 seeks to prevent involves an acquisition of loss corporation stock followed by the contribution of income-producing assets or the diversion of income-producing opportunities to the corporation. The two approaches differ, however, in the extent they seek to identify and limit their effect to circumstances in which that abuse is most likely to occur.
Under the Ownership Tracking Approach, generally it is of no significance whether the shareholders who increase their ownership are Small Shareholders or 5-percent shareholders. This approach ensures that abusive transactions are addressed by tracking all changes in ownership without regard to their particular circumstances. Thus, any transaction that allows the corporation to track the increase in ownership interests held by Small Shareholders results in the segregation of Small Shareholders into a new public group, which is treated as a 5-percent shareholder. However, the Ownership Tracking Approach makes a concession to administrative convenience and acknowledges that “public trading,” which is the purchase by one Small Shareholder of stock from another Small Shareholder, should not be taken into account because it is unduly burdensome for a corporation to take into account all such transactions. See § 1.382-2T(e)(1)(ii).
Consistent with the purpose of section 382, the Purposive Approach seeks to identify more specifically the circumstances in which abuses are likely to arise. This approach reflects the view that it is unnecessary to take into account all readily identifiable acquisitions of stock by Small Shareholders, because Small Shareholders generally are not in a position to acquire loss corporation stock in order to contribute income-producing assets or divert income-producing opportunities.
The current regulations primarily reflect the Ownership Tracking Approach. Although certain provisions may seem to follow the Purposive Approach, their justification is nevertheless based upon the Ownership Tracking Approach. For example, the cash issuance exception of § 1.382-3(j)(3) reduces the segregation effect of an issuance of stock to Small Shareholders but is justified on the grounds that there is likely to be substantial overlap between Small Shareholders who acquire stock in such an issuance and the Small Shareholders who already own stock.
The IRS and the Treasury Department received a range of comments in response to Notice 2010-49. Some comments endorsed substantial changes to the existing regulations, while others supported changes within the existing regulatory framework. One commenter supporting more modest changes to the existing regulations suggested that an overhaul of the current regulations likely would produce new uncertainties and complexities. Additionally, the comment observed that revisions allowing substantial infusions of capital into a loss corporation without section 382 implications would be counter to section 382 policies.
After consideration of the comments received, these regulations propose revisions following the Purposive Approach within the existing regulatory framework. Consistent with the Purposive Approach, these proposed regulations are intended to lessen the administrative burden and section 382 implications associated with transactions that are unlikely to implicate section 382 policy concerns. In general, these proposed regulations employ objective criteria to implement the Purposive Approach. The IRS and the Treasury Department believe that, where practicable, objective rules best serve the interests of loss corporations that desire certainty with respect to their section 382 positions, and best serve the interests of the government in fairly and consistently administering a complex statutory scheme.
Comments that embraced a more fundamental reform of the existing regulations were not incorporated into this proposal primarily because the approaches introduced significant subjectivity. For example, one commenter suggested that, subject to an anti-abuse rule, the segregation rules should not apply to redemption transactions. Another commenter suggested that if certain stock issuances and redemptions of Small Shareholders are sufficiently related, those transactions should be treated as public trading. These suggestions were not incorporated in favor of proposals that will provide greater certainty of result to the government and to loss corporations.
Several of the comments supported rendering the segregation rules inoperative to transfers of loss corporation stock to Small Shareholders by 5-Percent Entities or individuals who are 5-percent shareholders. These comments also supported relief from the segregation rules for transactions in which an ownership interest in a 5-Percent Entity is transferred to a public owner or a 5-percent owner who is not a 5-percent shareholder.
The IRS and the Treasury Department agree that adoption of these exceptions is appropriate because these transactions do not introduce new capital into the loss corporation and because direct or indirect ownership of the loss corporation becomes less concentrated, thus diminishing the opportunity for loss trafficking. Furthermore, limiting the creation of additional public groups where loss trafficking is not implicated simplifies tax compliance and administration. Accordingly, these proposed regulations generally render the segregation rules inoperative to transfers of loss corporation stock to Small Shareholders by 5-Percent Entities or individuals who are 5-percent shareholders. In these
Two of the comments supported limiting application of the segregation rules in the case of redemptions. These commenters observed that, generally, a loss corporation's redemption of its stock from Small Shareholders does not raise loss trafficking concerns because (i) the capital of the loss corporation is contracting, and (ii) Small Shareholders generally cannot traffic in losses. One comment supported a rule that would, subject to an anti-abuse rule, render the segregation rules inapplicable to all redemptions. In addition to supporting the inapplicability of the segregation rules to all redemptions, the comment supported an objective rule for exempting redemptions based upon the mechanics of the small issuance exception.
In general, these proposed regulations adopt a rule based upon the mechanics of the small issuance exception to obviate the need for a subjective anti-abuse rule. Like the small issuance exception, this exception for redemptions exempts from segregation, at the loss corporation's option, either 10 percent of the total value of the loss corporation's stock at the beginning of the taxable year, or 10 percent of the number of shares of the redeemed class outstanding at the beginning of the taxable year. Where this exception applies, each public group existing immediately before the redemption will be treated as redeeming its proportionate share of exempted stock.
Like the small issuance exception, the small redemption exception will allow a loss corporation to plan its affairs as of the beginning of each taxable year. Furthermore, consistent with the Purposive Approach, the exception reduces administrative burden and the section 382 impact of transactions in which the abuses that section 382 is intended to prevent are unlikely to arise.
One commenter expressed the need for relief from tracking shifts of ownership by Small Shareholders of 5-Percent Entities. The comment expressed that, in many cases, a loss corporation cannot obtain information relating to this ownership—either because the entity chooses not to respond or because the entity is prohibited from sharing information regarding its owners with the loss corporation. The inability to obtain this information may restrict capital-raising activities beyond what section 382 requires, because the loss corporation may choose to make worst-case assumptions about shifts in ownership when the relevant information cannot be obtained. The IRS and the Treasury Department agree that it is appropriate to provide relief in situations in which tracking shifts in ownership by Small Shareholders does not further the policy objectives of section 382. Furthermore, the IRS and the Treasury Department recognize that application of the segregation rules and the exceptions thereto present compliance issues for taxpayers and issues of tax administration for the government. Accordingly, these proposed regulations limit the situations in which the segregation rules apply to situations that potentially implicate the policies underlying section 382.
Under these proposed regulations, the segregation rules will not apply to a transaction if, on a testing date on which the rules would otherwise apply (i) the 5-Percent Entity owns ten percent or less (by value) of all the outstanding stock of the loss corporation (the ownership limitation), and (ii) the 5-Percent Entity's direct or indirect investment in the loss corporation does not exceed 25 percent of the entity's gross assets (the asset threshold). For purposes of the asset threshold, the entity's cash and cash items within the meaning of section 382(h)(3)(B)(ii) are not taken into account. Generally, the loss corporation may establish the ownership limitation through either actual knowledge or, absent actual knowledge to the contrary, the presumptions regarding stock ownership in § 1.382-2T(k)(1).
The IRS and the Treasury Department believe that the proposal strikes an appropriate balance between reducing complexity and safeguarding section 382 policies. The proposal will enable loss corporations to disregard indirect changes in its ownership that may, under the current regulations, require burdensome information gathering and may unnecessarily impede the loss corporation's ability to reorganize its affairs. At the same time, however, the proposal imposes criteria that protect the government's interests. The asset threshold makes it unlikely that the loss corporation's attributes motivate transactions in the equity of 5-Percent Entities. Additionally, like the small issuance exception and the relief for redemptions that appears elsewhere in this proposal, the ownership limitation makes it unlikely that transactions among Small Shareholders one or more tiers removed from the loss corporation implicate loss trafficking concerns. (Note that the asset threshold and the ownership limitation do not apply to the exception for secondary transfers described elsewhere in this preamble because secondary transfers do not implicate the same policy concerns as transactions in which loss corporations can obtain additional capital.)
Section 1.382-2T(j)(3) provides that, in general, the segregation rules apply to sales of loss corporation stock by individual 5-percent shareholders and by first tier entities. This section further provides that the “principles” of the foregoing apply to “transactions in which an ownership interest in a higher tier entity that owns five percent or more of the loss corporation (without regard to § 1.382-2T(h)(i)(A)) or a first tier entity is transferred to a public owner or a 5-percent owner who is not a 5-percent shareholder.” This proposed regulation clarifies that the segregation rules apply to such a transfer only if the seller indirectly owns five percent or more of the loss corporation. In the case of a sale by an entity, ownership is determined without regard to § 1.382-2T(h)(i)(A).
Several of the comments requested expansion of the small issuance and cash issuance exceptions as a percentage of stock that is exempted from the segregation rules. Some of these comments also suggested that the cash issuance exception should apply to issuances of stock for non-cash property, including debt.
As previously discussed, transactions that infuse new capital into a loss corporation are of particular concern to section 382 policies because the capital infusion can accelerate the use of tax attributes. This is the case even if the new investors are Small Shareholders. Moreover, in its current form, the cash issuance exception dilutes the owner shifts that are attributable to capital-raising transactions.
The IRS and the Treasury Department request comments as to whether further refinement of either or both of these exceptions might be warranted in the context of any potential expansion of
Questions have arisen concerning the application of § 1.382-3(a), which provides, in part, that a group of persons making a coordinated acquisition of stock can constitute an entity for purposes of section 382. Adding additional distinctions between larger and smaller shareholders, as proposed here, will increase the significance of this provision. The IRS and the Treasury Department are interested in comments as to circumstances under which a group of investors should be aggregated into a single entity based on their understandings or communications with each other or with third persons, such as the loss corporation or an underwriter.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. The certification is based on the fact that this rule would not impose new burdens on small entities and in fact, may reduce the recordkeeping burden on small entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. In addition to the specific requests for comments made elsewhere in this preamble, the IRS and the Treasury Department specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection at
The principal author of these proposed regulations is Stephen R. Cleary of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.382-3 also issued under 26 U.S.C. 382(g)(4)(C) and 26 U.S.C. 382(m). * * *
1. Adding paragraph (i).
2. Revising the heading of paragraph (j) and the introductory text of paragraph (j)(1).
3. Redesignating paragraphs (j)(13) and (j)(14) as (j)(16) and (j)(17).
4. Adding new paragraphs (j)(13) through (j)(14).
5. Adding new
6. Revising newly redesignated paragraph (j)(17).
The revisions and additions read as follows:
(i)
(2)
(j)
(13)
(14)
(ii)
(iii)
(
(
(B)
(C)
(D)
(E)
(iv)
(B)
(v)
(A) The redemptions occur at approximately the same time pursuant to the same plan or arrangement; or
(B) A principal purpose of redeeming the stock in separate redemptions rather than in a single redemption is to minimize or avoid an owner shift under the rules of this paragraph (j)(14).
(vi)
(15)
(A) The first tier or higher tier entity owns 10 percent or less (by value) of all the outstanding stock (without regard to § 1.382-2(a)(3)) of the loss corporation; and
(B) The entity's direct or indirect investment in the loss corporation does not exceed 25 percent of the entity's gross assets. For this purpose, the entity's cash and cash items within the meaning of section 382(h)(3)(B)(ii) are not taken into account.
(ii)
(A) the amount of increase in the percentage of stock ownership of the continuing public group will be the sum of its increase and a proportionate amount of any increase by any public group that is combined with the continuing public group (the former public group); and
(B) the continuing public group's lowest percentage ownership will be the sum of its lowest percentage ownership and a proportionate amount of the former public group's lowest percentage ownership.
(iii)
(A) The rules of § 1.382-2T(h)(2) will not apply;
(B) The entity will be treated as owning the loss corporation stock that it actually owns, and any loss corporation stock if that stock would be attributed to the entity under section 318(a) (without regard to paragraph (4) thereof unless an option is treated as exercised under § 1.382-4(d)); and
(C) The operating rules of paragraph (j)(15)(iv) of this section will apply.
(iv)
(A) Actual knowledge; or
(B) Absent actual knowledge to the contrary, the presumptions regarding stock ownership in § 1.382-2T(k)(1).
(16)
(ii)
(ii)
(ii)
(iii) The December redemption is a small redemption because the number of shares redeemed (90) does not exceed 106, the small redemption limitation (10 percent of the number of common shares outstanding on January 1, 2010). However, under paragraph (j)(14)(i) of this section, only 46 of the 90 shares redeemed are exempted from the segregation rules of § 1.382-2T(j)(2)(iii)(C) because the total number of shares of common stock redeemed in the July and December redemptions exceeds 106, the small redemption limitation, by 44. Accordingly, under paragraph (j)(14)(iv) of this section, Public L is treated as having 46 shares redeemed in the December redemption. Section 1.382-2T(j)(2)(iii)(C) applies to the remaining 44 shares redeemed. Accordingly, Public L is segregated into two different public groups immediately before the transaction (and thereafter) so that the redeemed interests (Public RL) are treated as part of a public group that is separate from the ownership interests that are not redeemed (Public CL). Therefore, as a result of the December redemption, Public CL's interest in L increases by 4.4 percentage points (from 95.6 percent (956/1,000) to 100 percent (910/910)) on the December 31, 2010 testing date. For purposes of determining whether an ownership change occurs on any subsequent testing date having a testing period that includes such redemption, Public CL is treated as a 5-percent shareholder whose percentage ownership interests in L increased by 4.4 percentage points as a result of the redemption.
(ii)
(ii)
(ii)
(ii)
(17)
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed regulations.
This document contains corrections to a notice of proposed regulations that were published in the
David A. Juster, (202) 622-3850 (not toll-free number).
The notice of proposed rulemaking (REG-146537-06) that is the subject of this correction is under sections 892 and 602 of the Internal Revenue Code.
As published on November 3, 2011 (76 FR 68119), the notice of proposed rulemaking (REG-146537-06) contains errors that may prove to be misleading and are in need of clarification.
Accordingly, the notice of proposed rulemaking (REG-146537-06) that was the subject of FR Doc. 2011-28531 is corrected as follows:
1. On page 68119, column 2, in the preamble under the paragraph heading “Paperwork Reduction Act”, line 17 from the top of the column, the language “the collection of information should be” is corrected to read “the collections of information should be”.
2. On page 68119, column 2, in the preamble under the paragraph heading “Paperwork Reduction Act”, the first full paragraph in the column, lines 1 and 2, the language “Whether the proposed collection of information is necessary for the proper” is corrected to read “Whether the proposed collections of information are necessary for the proper”.
3. On page 68119, column 2, in the preamble under the paragraph heading “Paperwork Reduction Act”, second paragraph in the column, line 2, the language “associate with the proposed collection” is corrected to read “associate with the proposed collections”.
4. On page 68119, column 2, in the preamble under the paragraph heading “Paperwork Reduction Act”, sixth paragraph in the column, lines 1 and 2, the language “The collection of information in this proposed regulation is in §§ 1.892-” is corrected to read “The collections of information in this proposed regulations are in §§ 1.892-”.
5. On page 68119, column 2, in the preamble under the paragraph heading “Paperwork Reduction Act”, sixth paragraph in the column, lines 6 and 7, the language “tax under section 892. The collection of information is voluntary to obtain a” is corrected to read “tax under section 892. The collections of information are voluntary to obtain a”.
6. On page 68119, column 3, in the preamble under the paragraph heading “Background”, fifth line from the bottom of the paragraph, the language “referenced notice of proposed” is corrected to read “reference notice of proposed”.
7. On page 68121, column 1, in the preamble under the paragraph heading “Definition of Commercial Activity”, third line from the bottom of the last paragraph, the language “proposed regulations revised § 1.892-” is corrected to read “proposed regulations revise § 1.892-”.
8. On page 68122, column 1, Paragraph 1. The authority citation, line 2, the language “for parts 1 and 601 continues to read in” is corrected to read “for part 1 continues to read in”.
9. On page 68122, column 3, § 1.892-5(a)(1), line 2, the paragraph heading (a)(1) the language “definition of term “controlled” is corrected to read “definition of the term “controlled”.
10. On page 68123, column 3, § 1.892-5(d)(5)(i), line 3, the language “(d)(5)(ii) or (d)(5)(iii) of this section, the” is corrected to read “(d)(5)(ii) or paragraph (d)(5)(iii) of this section, the”.
National Labor Relations Board.
Proposed rule; notice of meeting.
The National Labor Relations Board (NLRB or Board) invites interested parties to attend an open meeting of the Board on November 30, 2011, at 2:30 p.m. The meeting will be held in the Board Agenda Room (Room 11820), National Labor Relations Board, 1099 14th Street NW., Washington, DC 20570. The purpose of the meeting will be to vote on how to proceed in this rulemaking proceeding. No public testimony or comments will be received.
The meeting will be held on Wednesday, November 30, 2011, beginning at 2:30 p.m. Due to time and seating considerations, persons desiring to attend the meeting must notify the NLRB staff, no later than 4 p.m. on Monday, November 28, 2011.
The public meeting will be held in the Board Agenda Room (Room 11820), National Labor Relations Board, 1099 14th Street NW., Washington, DC 20570. Requests to attend the meeting must be addressed to Mary Meyers, Administrative Assistant to the Chairman, National Labor Relations Board, 1099 14th Street, NW., Suite 11100, Washington, DC 20570. Requests may also be made electronically to
Mary Meyers, Administrative Assistant to the Chairman, National Labor Relations Board, 1099 14th Street NW., Suite 11100, Washington, DC 20570;
The National Labor Relations Board will hold an open public meeting on Wednesday, November 30, 2011, at 2:30 p.m. The purpose of the meeting will be to vote on how to proceed in this rulemaking proceeding. No public testimony or comments will be received.
On June 22, 2011, the NLRB published a Notice of Proposed Rulemaking (NPRM) (76 FR 36812), proposing to amend its rules and regulations governing the filing and processing of petitions relating to the representation of employees for purposes of collective bargaining with their employer. In addition to the comment procedure outlined in the NPRM, the NLRB provided another opportunity for interested persons to provide their views to the Board on this important matter at an open public meeting. This public meeting was held on July 18-19, 2011, with 66 witnesses testifying before the Board. Thereafter, the deadline for filing initial public comments was August 22, 2011, and the deadline for filing reply comments was September 6, 2011. Over 65,000 written comments have been received and analyzed. The Board must now decide how to proceed in this matter.
Persons desiring to attend the meeting must notify the NLRB staff, in writing, at the above listed physical or email address, by the deadline posted. Attendees are reminded to bring a photo identification card with them to the public meeting in order to gain
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the waters of the Gulf of Mexico in the vicinity of Marco Island Marriott Beach Resort in Marco Island, Florida during the Marco Island Marriott Charity Fireworks Display on Friday, February 17, 2012. The safety zone is necessary to protect the public from the hazards associated with launching fireworks over navigable waters of the United States. Persons and vessels would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative.
Comments and related material must be received by the Coast Guard on or before December 17, 2011. Requests for public meetings must be received by the Coast Guard on or before November 30, 2011.
You may submit comments identified by docket number USCG-2011-0968 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Marine Science Technician First Class Nolan L. Ammons, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0968), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one on or before November 30, 2011 using one of the four methods specified under
The legal basis for the proposed rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
The purpose of the proposed rule is to protect the public from the hazards associated with the launching of fireworks over navigable waters of the United States.
On Friday, February 17, 2012, the Marco Island Marriott Charity Fireworks Display is scheduled to take place in Marco Island, Florida. The fireworks will be launched from a vessel located approximately 330 yards west of Marco Island on the Gulf of Mexico. The fireworks will explode over the Gulf of Mexico. The fireworks display is scheduled to commence at approximately 8:30 p.m.
The proposed rule would establish a temporary safety zone that encompasses certain waters of the Gulf of Mexico in the vicinity of Marco Island Marriott Beach Resort in Marco Island, Florida. The safety zone would be enforced from 8 p.m. until 10 p.m. on February 17, 2012. Enforcement of the safety zone would begin 30 minutes prior to the scheduled commencement of the fireworks display at approximately 8:30 p.m., to ensure the safety zone is clear of persons and vessels.
Persons and vessels would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative. Persons and vessels would be able to request authorization to enter, transit through, anchor in, or remain within the safety zone by contacting the Captain of the Port St. Petersburg by telephone at (727) 824-7524, or a designated representative via VHF radio on channel 16, to request authorization. The Coast Guard would provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
Executive Orders 13563, Regulatory Planning and Review, and 12866, Improving Regulation and Regulatory Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this proposed rule under Executive Order 12866.
The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone would be enforced for only two hours; (2) vessel traffic in the area would be minimal during the enforcement period; (3) although persons and vessels would not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port St. Petersburg or a designated representative, they would be able to operate in the surrounding area during the enforcement period; (4) persons and vessels would still be able to enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port St. Petersburg or a designated representative; and (5) the Coast Guard would provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Gulf of Mexico encompassed within the safety zone from 8 p.m. until 10 p.m. on February 17, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this proposed rule would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Science Technician First Class Nolan L. Ammons, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add a temporary § 165.T07-0968 to read as follows:
(a)
(b)
(c)
(1) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port St. Petersburg or a designated representative.
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port St. Petersburg by telephone at (727) 824-7524, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
United States Patent and Trademark Office, Commerce.
Request for comments.
The United States Patent and Trademark Office (USPTO) is considering several changes in practice designed to encourage a more complete record at the USPTO of patent assignments. The USPTO invites the public to provide comments on methods the USPTO can employ to collect more timely and accurate patent assignment information both during prosecution and after issuance.
To ensure full consideration, written comments should be received no later than January 23, 2012.
Written comments may be submitted, identified as “Eliciting More Complete Patent Assignment Information,” by any of the following methods:
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The written comments will be available for public inspection at the Office of the Chief Economist, located in the Madison West Building, Tenth Floor, 600 Dulany Street, Alexandria, Virginia 22314. In addition, the written comments from the public will also be available via the USPTO Internet Web site (address:
Because comments will be made available for public inspection, information that is not desired to be made public, such as a phone number, should not be included in the comments.
Requests for additional information should be directed to Saurabh Vishnubhakat by electronic mail at
The USPTO is considering changes aimed at building a more complete record of assigned applications and patents. It is increasingly clear that applications, patents and the completeness of the patent record play an essential role in the markets of innovation.
Intangible assets now comprise over 50% of the business outputs of U.S. industry, and intellectual property rights (IPRs) provide a platform for intangibles to be transacted so that they can provide profits for innovators and move technologies to their most efficient uses in the economy.
IPRs are often cleared by their manufacturers or distributers in order for new products to be legally sold. In such cases, IPR clearance is often made more difficult and time-consuming, legally risky, and expensive because current assignment information on patents and applications is not available. An incomplete assignment record thus presents a significant barrier to market efficiency.
Markets operate most efficiently when buyers and sellers can find one another. Yet in our current system, fragmented ownership in the patent rights covering complex products leads to potential buyers facing difficulty finding sellers, and potential innovators not understanding the nature of the marketplace they are considering entering.
To address the need for accurate assignment data for pending patent applications and issued patents, the USPTO is interested in providing more complete patent assignment data to the public, in accordance with the Office's duty under 35 U.S.C. 2(a)(2) of “disseminating to the public information with respect to patents.”
A more complete patent assignment record would produce a number of benefits. The public would have a more comprehensive understanding of what patent rights being issued by the United States are being held and maintained by various entities. The financial markets would have more complete information about the valuable assets being generated and held by companies. Patenting inventors and manufacturers would better understand the competitive environment in which they are operating, allowing them to better allocate their own research and development resources, and more efficiently obtain licenses and accurately value patent portfolios and patent estates that they may seek to acquire.
To elicit more complete patent assignment data, the USPTO is considering changes to various provisions of 37 CFR to require that any change in the identity of the assignee or assignees (i.e., real party in interest) be made known to the Office within each communication to the Office by the representative of the applicant during patent prosecution.
These potential changes include:
(1) Amending 37 CFR to require that any assignee or assignees be disclosed at the time of application filing;
(2) Amending 37 CFR 3.81 to require that the application issue in the name of the assignee or assignees as of the date of payment of the issue fee;
(3) Amending 37 CFR 1.215(b) to require the identification of assignment changes after filing date for inclusion on the patent application publication (PGPub);
(4) Amending 37 CFR 1.27(g) to require timely identification of any new ownership rights that cause the application or issued patent to gain or lose entitlement to small entity status; and
(5) Amending 37 CFR to provide for discounted maintenance fees in return for verification or update of assignee information either when a maintenance fee is paid or within a limited time period from the date of maintenance fee payment.
With regard to change (2) above, 37 CFR 3.81 currently states that the “application may issue in the name of the assignee * * * where a request for such issuance is submitted with payment of the issue fee.” The “request for such issuance” (in the name of the assignee) is made by entering the name and residence of the assignee in box 3 of the issue fee transmittal form (form 85B). The assignee name entered in box 3 of form 85B is printed on the patent and included in USPTO's searchable U.S. Patent database. The USPTO is considering amending 37 CFR 3.81 to no longer predicate issuance in the name of the assignee on whether or not the applicant decides to make a “request for such issuance.”
Rather, the USPTO is considering amending 37 CFR 3.81 to require that the assignee be identified at the time of payment of the issue fee. Correspondingly, Box 3 of Form 85B may be changed to show that the assignee name must be entered. This could help improve the accuracy of assignment searches made in the U.S. patent database. As amended by the
[I]f the Director grants a patent on an application filed under this section by a person other than the inventor, the patent shall be granted to the real party in interest and upon such notice to the inventor as the Director considers to be sufficient.
With regard to change (3), 37 CFR 1.215(b) currently sets forth that assignee information must appear on the application transmittal sheet (
With regard to change (4), the title of 37 CFR 1.27(g)(2) is “Notification of loss of entitlement to small entity status is required when issue and maintenance fees are due.” However, current § 1.27(g)(2) does not require identification of the new assignee that caused the application or issued patent to lose entitlement to small entity status, or in the alternative, a statement that the current assignee is no longer eligible for small entity status for other reasons (
With regard to change (5), the USPTO is considering implementing its new fee setting authority, under § 10 of the AIA, in order to provide for discounted maintenance fees in return for verification or update of assignee information either when a maintenance fee is paid or within a limited time period from the date of maintenance fee payment.
The patent assignment recordation statute, 35 U.S.C. 261, provides that:
An assignment, grant, or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from its date or prior to the date of such subsequent purchase or mortgage.
Failure to record a patent assignment voids the assignment against a subsequent purchaser or mortgagee of the patent. Where there is no subsequent purchaser or mortgagee, the statute has no effect other than to protect against potential future subsequent purchasers or mortgagees. Moreover, even where the statute may have effect, owners may still have incentives not to record. Thus, the absence of an explicit, affirmative recordation requirement may result in an incomplete assignment record.
If the USPTO pursues this change, the information verifying or updating assignee information would likely be required to come from a party under 37 CFR 1.33(b). In addition, any new assignment documents would likely be required to be recorded in order to claim the discount. Providing for discounts within a limited time period after a maintenance fee payment would permit a third party fee submitter to pay the maintenance fee, followed by the party under 37 CFR 1.33(b) requesting the discount in the form of a partial refund.
Administratively, the USPTO would have to decide whether the discount should go to the 37 CFR 1.33(b) party, or to the third party fee submitter in this situation. The USPTO is aware that a significant portion of maintenance fees are filed by “bulk filers” which are companies whose business with the USPTO is to pay maintenance fees in bulk. Since the bulk filers are customarily paid up front for whatever fee amount is to be paid to the USPTO (discounted or undiscounted), there should be no loss to bulk filers if discounts were sent directly to the 37 CFR 1.33(b) party. For the discount to be obtained, the request for the discount would ideally be accompanied by a verification of current assignment information, or identification of the new assignee together with the corresponding assignment documents for recordation.
Comments on one or more of the following questions would be helpful to the USPTO:
(1) Is there any reason that the mandatory disclosure of any assignee or assignees should not take place at the time of application filing?
(2) Would it be in the public interest for the USPTO to obtain from applicants updated identification of the assignee at the time of allowance, e.g. in response to the Notice of Allowance? Are there limitations on the USPTO's rights and powers to require the reporting of such information?
(3) Would it be in the public interest for the USPTO to obtain from applicants updated identification of the assignee during prosecution of the application? Are there limitations on the USPTO's rights and powers to require the reporting of such information? Should the USPTO consider requiring the identification of assignment changes after filing date for inclusion on the patent application publication (PGPub)? At what time should changes be recorded relative to the assignment, and what are the appropriate consequences of non-compliance?
(4) Would it be in the public interest for the USPTO to obtain from applicants updated identification of the assignee after issue of the patent? Are there limitations on the USPTO's rights and powers to require the reporting of such information? At what time should such identification be made to the Office relative to a change? Should the USPTO consider requiring the identification of assignment changes during the maintenance period of the patent right,
(5) To accomplish adequate and timely recording, are changes to Agency regulations necessary? What are the most effective and appropriate means for the USPTO to provide the public with a timely and accurate record of the assignment of patent rights and the assignee?
(6) Would it help the USPTO's goal of collecting more updated assignment information if 37 CFR 1.27(g)(2) were amended to require identification of any new ownership rights that caused the application or issued patent to lose entitlement to small entity status?
(7) Given the passage of the America Invents Act, is it proper for the Office to provide for financial incentives for disclosure of assignment information by way of discounts in fee payments? For example, would it be more likely for patentees to update assignment information and record assignment documents on in-force patents if a maintenance-fee discount were available in return? What are the appropriate consequences for failure to provide accurate information when accepting such a discount?
(8) In order to provide a more complete record for transactional purposes, what changes do you recommend that USPTO make in its requirements or incentives relating to the disclosure of assignment information during the patent application process and for issued in-force patents?
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to make two determinations regarding the Baltimore fine particulate matter (PM
Written comments must be received on or before December 23, 2011.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2011-0819 by one of the following methods:
A.
B.
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D.
Ruth Knapp, (215) 814-2191, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
This supplementary information section is arranged as follows:
In accordance with section 179(c)(1) of the CAA, 42 U.S.C. 7509(c)(1), and 40 CFR 51.1004(c), EPA is proposing to determine that the Baltimore Area has attained the 1997 annual PM
On July 18, 1997 (62 FR 36852), EPA established an annual PM
On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM
In response to legal challenges of the annual standards promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded this standard to EPA for further consideration. See,
On April 25, 2007 (72 FR 20664), EPA promulgated its PM
On July 31, 2009 (74 FR 38161), EPA proposed, but never finalized a clean data determination for the Baltimore Area. See, Docket ID No. EPA-R03-OAR-2009-0199. EPA is withdrawing this previous clean data proposal for the Baltimore Area.
Today's proposed rulemaking determines that the Baltimore Area has clean data for the 1997 annual PM
EPA has determined that the PM
Table 1 shows the design values (i.e., the 3-year average of annual mean PM
Preliminary data for 2011 which has not been quality-assured or certified is included in Table 3 below. This preliminary 2011 data indicates that the Area continues to attain the annual PM
Additional information about the monitoring network and air quality data can be found in the Technical Support Document (TSD) for this action which is available online at
If EPA's proposed clean data determination based on the most recent three years of quality-assured data and data available to date for 2011, is made final, the requirements for the Baltimore Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning SIPs related to attainment of the 1997 annual PM
Finalizing this proposed action would not constitute a redesignation of the Area to attainment of the 1997 annual PM
In addition, if EPA's separate and independent proposed determination that the Area has attained the 1997 annual PM
These two actions described above are proposed determinations regarding the Baltimore Area's attainment only with respect to the 1997 annual PM
This action proposes to make attainment determinations based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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, this proposed rule to find that the Baltimore Area attained the annual 1997 PM
Environmental protection, Air pollution control, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to determine that the Greater Connecticut serious one-hour ozone nonattainment area did not meet the applicable deadline of November 15, 2007, for attaining the one-hour National Ambient Air Quality Standard (NAAQS) for ozone. This proposed determination is based upon complete, quality-assured, certified ambient air monitoring data that show the area had an expected ozone exceedance rate above the level of the now revoked one-hour ozone NAAQS for the 2005-2007 monitoring period. Separate from and independent of this proposed determination, EPA is also proposing to determine that the Greater Connecticut serious one-hour ozone nonattainment area currently attains the now revoked one-hour NAAQS for ozone, based upon complete, quality-assured, certified ambient air monitoring data for 2008-2010. The area first attained the one-hour NAAQS during the 2006-2008 monitoring period, and continued in attainment during the 2007-2009, and 2008-2010 monitoring periods. Preliminary data available for 2011 also show the area continues to meet the one-hour NAAQS for ozone. EPA is proposing these determinations under the Clean Air Act.
Written comments must be received on or before December 23, 2011.
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2011-0711 by one of the following methods:
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Richard P. Burkhart, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-3912, telephone number (617) 918-1664, fax number (617) 918-0664, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Organization of this document. The following outline is provided to aid in locating information in this preamble:
EPA is proposing two separate and independent actions for the Greater Connecticut one-hour ozone serious nonattainment area (hereafter, “the Greater Connecticut area”).
EPA is proposing to determine that the Greater Connecticut area did not attain the one-hour ozone NAAQS by the applicable attainment date, November 15, 2007. This proposed determination is based upon complete, quality-assured and certified air quality monitoring data for the 2005 through 2007 ozone seasons.
In addition, EPA is proposing to determine that the Greater Connecticut area is currently attaining the one-hour
EPA designated the Greater Connecticut area as nonattainment for one-hour ozone following the enactment of the Clean Air Act (CAA) Amendments of 1990. Most areas of the country that EPA designated nonattainment for the one-hour ozone NAAQS were classified by operation of law as marginal, moderate, serious, severe, or extreme, depending on the severity of the area's air quality problem. See CAA sections 107(d)(1)(C) and 181(a). The Greater Connecticut area was classified as serious. The one-hour ozone attainment deadline for the Greater Connecticut serious area was initially set for November 15, 1999, and later extended to November 15, 2007 based on EPA's Attainment Date Extension Policy. See 66 FR 634, January 3, 2001. The Greater Connecticut one-hour ozone nonattainment area consists of most of Connecticut, with the following exceptions: Bridgetown and New Milford in Litchfield County are excluded. Also, Fairfield County is excluded, save the City of Sheldon. See 40 CFR 81.307. The entire state was designated nonattainment for the one-hour standard, and divided into two nonattainment areas: Greater Connecticut and the Connecticut portion of the New York City area.
On July 18, 1997 (62 FR 38856), EPA promulgated a new, standard for ozone based on an 8-hour average concentration (the “1997 8-hour ozone NAAQS”). EPA designated and classified most areas of the country under the eight-hour ozone NAAQS in an April 30, 2004 final rule. See 69 FR 23858. EPA designated Greater Connecticut as nonattainment for the 1997 8-hour ozone NAAQS, and at the time of designation the area did not meet the one-hour ozone standard. Again, the entire state was designated nonattainment for the 8-hour NAAQS, and divided into two nonattainment areas, with the same names as the one-hour areas, but with slightly different boundaries than the two one-hour areas. See 40 CFR 81.307.
On April 30, 2004, EPA issued a final rule (69 FR 23951) entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1,” referred to as the Phase 1 Rule. Among other matters, this rule revoked the one-hour ozone NAAQS in most areas of the country, effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at 23996; and 70 FR 44470. The Phase 1 Rule also set forth how anti-backsliding principles will ensure continued progress toward attainment of the eight-hour ozone NAAQS by identifying which one-hour requirements remain applicable in an area after revocation of the one-hour ozone NAAQS. Although, EPA revoked the one-hour ozone standard (effective June 15, 2005), eight-hour ozone nonattainment areas remain subject to certain one-hour, anti-backsliding requirements based on their one-hour ozone classification. Initially, in our rules to address the transition from the one-hour to the eight-hour ozone standard, EPA did not include one-hour contingency measures among the measures retained as one-hour ozone anti-backsliding requirements.
After revocation of the one-hour ozone standard, EPA must continue to provide a mechanism to give effect to the one-hour anti-backsliding requirements. See
Although the one-hour ozone NAAQS as promulgated in 40 CFR 50.9 includes no discussion of specific data handling conventions, EPA's publicly articulated position and the approach long since universally adopted by the air quality management community is that the interpretation of the one-hour ozone standard requires rounding ambient air quality data consistent with the stated level of the standard, which is 0.12 parts per million (ppm). 40 CFR 50.9(a) states that: “The level of the national one-hour primary and secondary ambient air quality standards for ozone * * * is 0.12 parts per million. * * * The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations of 0.12 parts per million * * * is equal to or less than 1, as determined by appendix H to this part.” Thus, compliance with the NAAQS is based on comparison of air quality concentrations with the standard and on how many days that standard has been exceeded, adjusted for the number of missing days.
For comparison with the NAAQS, EPA has clearly communicated the data handling conventions for the one-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued guidance stating that the level of our NAAQS dictates the number of significant figures to be used in determining whether the standard was exceeded. The stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of 0.12 ppm means that measurements are to be rounded to two decimal places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest concentration value in excess of the level of the standard. See “Guideline for the Interpretation of Ozone Air Quality Standards,” EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979. EPA has consistently applied the rounding convention in this 1979 guideline. See 68 FR 19111, April 17, 2003, 68 FR 62043, October 31, 2003, and 69 FR 21719, April 22, 2004. Then, EPA determines attainment status under the one-hour ozone NAAQS on the basis of the annual average number of expected exceedances of the NAAQS over a three-year period. See 60 FR 3349, January 17, 1995 and also the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” at 57 FR 13506 April 16, 1992 (“General Preamble”). EPA's determination is based upon data that have been collected and quality-assured in accordance with 40 CFR 58, and recorded in EPA's Air Quality System (AQS) database. To account for missing data, the procedures found in appendix H to 40 CFR part 50 are used to adjust the actual number of monitored exceedances of the standard to yield the annual number of expected exceedances (“expected exceedance days”) at an air quality monitoring site. We determine if an area meets the one-hour ozone NAAQS by calculating, at each monitor, the average expected number of days over the standard per year (
The following tables show one-hour ozone data for the Greater Connecticut area for each of the three-year periods 2005-2007 (Table 1), 2006-2008 (Table 2), 2007-2009 (Table 3), and 2008-2010 (Table 4). In short, if the three-year average expected exceedances rate, shown in the far right column, is less than or equal to 1.0, the site meets the one-hour ozone NAAQS. If all sites in the area meet the one-hour ozone standard, then the area met the one-hour NAAQS during that time period.
EPA has reviewed and evaluated these data in order to make two separate proposed determinations. First, EPA addresses whether the Greater Connecticut area attained the one-hour ozone standard by the applicable one-hour attainment date. As shown in Table 1, the Greater Connecticut one-hour ozone nonattainment area did not meet its attainment deadline of November 15, 2007, since three ozone monitors had expected exceedances rates above 1.0. In addition, the East Hartford ozone monitor recorded two exceedances of the now revoked one-hour ozone standard in 2007. Two exceedances at one monitor prevented Connecticut from requesting a one-year extension of the attainment date for the Greater Connecticut area. See CAA Section 181(a)(5).
Tables 2, 3 and 4, however, show the area subsequently met the one-hour ozone standard based on 2006-2008 ozone data (see Table 2) and continues to meet the one-hour standard based on complete, quality-assured data for subsequent time periods (see Tables 3 and 4). Preliminary ozone data available for 2011 also show that currently the area continues in attainment of the one-hour ozone standard. Thus, EPA is
For the reasons set forth in this notice, EPA is proposing to determine that the Greater Connecticut one-hour ozone nonattainment area did not meet its applicable one-hour ozone attainment date of November 15, 2007, based on 2005-2007 quality-assured ozone monitoring data.
EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the
This action proposes to make determinations of attainment based on monitored air quality data and does not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:
• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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 Clean Air Act; 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).
In addition, these actions do not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not 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.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshop.
On June 28, 2011, NMFS published a proposed rule that considered requiring, among other things, Federal Atlantic swordfish, shark, and tunas dealers (except for dealers reporting Atlantic bluefin tuna) to report commercially-harvested Atlantic sharks, swordfish, and bigeye, albacore, yellowfin, and skipjack (BAYS) tunas to NMFS through one centralized electronic reporting system. This electronic reporting system would allow dealers to submit Atlantic sharks, swordfish, and BAYS tuna data on a more real-time basis and more efficiently, which will reduce duplicative data submissions from different regions. NMFS proposed to delay the effective date of the electronic reporting requirements until 2012 in order to give sufficient time for dealers to adjust to implementation of the new system and the additional requirements. In this notice, NMFS announces the date and location for an upcoming workshop in the Caribbean area in order to introduce the new reporting system to HMS dealers. NMFS will announce additional workshops in a future notice.
The initial Workshop will be held on December 14, 2011, from 6 to 8 p.m.
The initial workshop will be held in St. Thomas, USVI, Frenchman's Reef and Morning Star Marriott Beach Resort, 5 Estate Bakkreore, St. Thomas, Virgin Islands, 00801. See
Delisse Ortiz or Karyl Brewster-Geisz, at (301) 427-8503 (phone) or (301) 713-1917 (fax) or
Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
The current regulations and infrastructure of the Atlantic HMS quota-monitoring systems result in a delay of several weeks to almost a month before NMFS receives dealer data. This can affect management and monitoring of small Atlantic HMS quotas and short fishing seasons. As such, on June 28, 2011 (76 FR 37750), NMFS published a proposed rule in the
In order to give sufficient time for dealers to adjust to implementation of the new system and the additional requirements, NMFS proposed delaying implementation of the new HMS electronic reporting system for all federally-permitted HMS dealers until 2012. Additionally, NMFS decided to conduct outreach to HMD dealers to train them how to use the new system and help ease the transition from the current paper format to the new HMS electronic reporting system. NMFS will conduct an initial workshop for HMS dealers in St. Thomas, U.S.V.I. on December 14, 2011 (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of workshops; extension of comment period.
NMFS previously published, on September 16, 2011, a notice of intent (NOI) to prepare an environmental impact statement (EIS) and fishery management plan (FMP) amendment that would consider catch shares for the Atlantic shark fisheries. The comment period in the NOI ends on March 1, 2012. In this notice, NMFS announces the dates and locations for five upcoming scoping workshops to provide the opportunity for public comment on various design elements for potential catch shares programs in the Atlantic shark fisheries. Additionally, NMFS is extending the comment period to March 31, 2012, to provide additional opportunities for the five Fishery Management Councils, the Atlantic and Gulf States Marine Fisheries Commissions, and other interested parties to comment on the consideration of catch shares.
Workshops for Amendment 6 to the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP) will be held from December 2011 through March 2012. See
Workshops will be held in Madeira Beach, FL; Cocoa Beach, FL; Barnegat, NJ; Belle Chasse, LA; and Manteo, NC. See
As published on September 16, 2011 (76 FR 57709), written comments on this action may be submitted, identified by NOAA-NMFS-2010-0188, by any one of the following methods:
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Related documents—including the 2006 Consolidated HMS FMP and its amendments, and the 2010 Stock Assessment and Fishery Evaluation Report—are available upon request at the mailing address noted above or on the HMS Management Division's Web page at:
Karyl Brewster-Geisz, LeAnn Southward Hogan, or Guý DuBeck at (301) 427-8503 or fax at (301) 713-1917.
The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated HMS FMP is implemented by regulations at 50 CFR part 635 and was amended in 2008 and 2010 to address management needs in the Atlantic shark fisheries.
On September 16, 2011 (76 FR 57709), NMFS published a NOI that announces NMFS intent to prepare an EIS and FMP Amendment that would consider catch shares for the Atlantic shark fisheries. The NOI also established a control date for eligibility to participate in an
Five workshops will be held (see Table 1 for meeting dates, times, and locations) to provide the opportunity for public comment on potential catch share design elements for the Atlantic shark fisheries. These comments will be used to assist in the development of Amendment 6 to the 2006 Consolidated HMS FMP.
Specifically, NMFS is interested in obtaining feedback on issues, including, but not limited to: Eligibility (directed and/or incidental permit holders), specification of the resource unit (species and regions to include), initial allocation (based on catch history and/or other means), and catch share management. NMFS has prepared a white paper that provides more detail concerning some of the potential design elements for catch share programs and provides the public with additional information regarding issues in the Atlantic shark fisheries. Information related to catch shares for the Atlantic shark fisheries is available on the HMS Management Division Web site (
Comments received on this action will assist NMFS in determining the options for rulemaking to conserve and manage shark resources and fisheries, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP.
In addition to the five scoping workshops, NMFS has requested time on the agendas of the upcoming Caribbean, Gulf of Mexico, New England, Mid-Atlantic, and South Atlantic Fishery Management Councils, as well as the Atlantic and Gulf States Marine Fisheries Commissions during the public comment period. NMFS also expects to share the comments received to date regarding catch shares for the Atlantic shark fisheries at the March 2012 HMS Advisory Panel meeting. The dates and location of the AP meeting will be announced in a future
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
The North Pacific Fishery Management Council has submitted Amendment 93 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). Amendment 93, if approved, would establish separate prohibited species catch (PSC) limits in the Central and Western Regulatory Areas of the Gulf of Alaska (GOA) for Chinook salmon (
Comments on the amendment must be received on or before January 23, 2012.
Send comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by FDMS Docket Number NOAA-NMFS-2011-0156, by any one of the following methods:
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•
Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered.
All comments received are a part of the public record. Comments will generally be posted without change. All Personal Identifying Information (for example, name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Electronic copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from
Mary Grady, (907) 586-7228.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the
The groundfish fisheries in the exclusive economic zone of the GOA are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act (MSA). Amendment 93 would apply only to the management of the pollock fishery (
Harvest of Chinook salmon from vessels in the pollock parallel fisheries in State waters of the GOA will be deducted from the applicable PSC limit because coordinated State and Federal fisheries management provides consistent management for both groundfish and prohibited fish species that are distributed across State and Federal boundaries. Coordinated State and Federal fisheries management is desirable because the pollock fishery in parallel waters operate in both State and Federal waters and can cross the State and Federal boundary during a single haul. This management provides consistency to prevent confusion and eliminate loopholes that may occur under different requirements between State and Federal waters. Under parallel fisheries management the State and Federal fisheries are able to synchronize their seasons, which provides consistent time and area catch and management data for both groundfish and PSC limits.
The EA/RIR/IRFA indicates that a substantial portion of the pollock TAC in these areas is taken in State waters, at least in some years. Counting Chinook salmon PSC from State waters towards attainment of the Chinook salmon PSC limit would promote the effectiveness of the Federal PSC limits to protect Chinook salmon stocks as well as the interests of Chinook salmon users. Applying this action to the parallel fisheries in years of high Chinook salmon PSC catch could prevent the fleet from diverting effort into State waters to avoid reaching the PSC limit, and could effectively limit or reduce Chinook salmon PSC. The Council recommended inclusion of the State parallel fisheries in this action because only by counting Chinook salmon PSC landed in State waters against the Chinook salmon PSC limits that apply in the EEZ can NMFS, the State, and the Council avoid an undesirable displacement of fishery effort into State waters to avoid accrual of Chinook salmon PSC, a shift that could actually have the effect of increasing Chinook salmon PSC. Under the proposed FMP amendment and proposed rule, Chinook salmon PSC in State waters would count against the limits. When a limit is reached, NMFS will close Federal waters. The limit and the possibility of closure should create an incentive for the fleet to fish in areas with lower Chinook salmon PSC rates. In addition, the State has indicated that it will close the parallel fishery if and when a Federal closure occurs, which will limit Chinook PSC throughout the Western and Central GOA reporting areas.
If approved, Amendment 93 would establish PSC limits in the Central and Western GOA pollock fisheries. The annual PSC limit for the pollock fishery in the Central Reporting Area would be 18,316 Chinook salmon. The annual PSC limit for the pollock fishery in the Western Reporting Area would be 6,684 Chinook salmon. If the applicable Chinook salmon PSC limit for the respective regulatory area is reached, NMFS would close the directed pollock fishery in the respective regulatory area. The State would continue to manage the closures of the pollock fishery in State waters.
The principal objective of Chinook salmon bycatch management in the GOA pollock fishery is to minimize Chinook salmon bycatch to the extent practicable, while enabling the pollock harvest to contribute substantially towards the attainment of optimum yield in the groundfish fishery on an ongoing basis. Minimizing Chinook salmon bycatch while achieving optimum yield is necessary to maintain a healthy marine ecosystem, ensure long-term conservation and abundance of Chinook salmon, provide maximum benefit to fishermen and communities that depend on Chinook salmon and pollock resources, and comply with the MSA and other applicable Federal law.
In developing Amendment 93, the Council considered consistency with the Magnuson-Stevens Act's 10 National Standards. The Council designed Amendment 93 to balance the competing demands of the National Standards. Specifically, the Council recognized the need to balance and be consistent with both National Standard 9 and National Standard 1. National
The Council also considered the importance of equity among user groups in recommending Amendment 93. In addition to providing a fair and equitable apportionment of the total GOA-wide PSC limit between the Central and Western GOA pollock fisheries, the Council also considered the needs of Chinook salmon users. The Council noted that the Chinook salmon resource is of value to many stakeholders, including, but not limited to, commercial, recreational, and cultural user groups; and it is a resource that is currently fully utilized. By recommending a PSC limit that reduces Chinook salmon bycatch, the Council also has considered the needs of these other user groups and has recommended measures to promote their access to the Chinook salmon resource.
Under Amendment 93, the Chinook salmon PSC limits are based on the Council's recommended GOA-wide goal of limiting Chinook salmon bycatch to no more than 25,000 salmon in the Central and Western GOA pollock fisheries. The Council noted that the pollock fishery accounts for approximately 75 percent of Chinook salmon PSC in the GOA groundfish fisheries based on the Chinook salmon bycatch levels from 2001 to 2010. At final action, the Council selected a GOA-wide Chinook salmon PSC limit of 25,000 salmon, having previously considered a GOA-wide limit of 22,500 Chinook salmon. The Council apportioned the selected GOA-wide Chinook salmon PSC limit between the Central and Western GOA on the basis of annual Chinook salmon PSC levels and pollock harvests in each area, set at an equal ratio during 2001 to 2010 excluding 2007 and 2010, with an adjustment intended to prevent either area from bearing a disproportionate share of the economic impact of the PSC limit. To apportion the 25,000 Chinook salmon PSC limit, the Council recommended a PSC limit for the Western GOA PSC that reflects the output of this formula, applied to a total GOA-wide PSC limit of 22,500 Chinook salmon, with no adjustment. The Council recommended a PSC limit for the Central GOA that reflects the output of this formula, applied to a GOA-wide PSC limit of 22,500 Chinook salmon, adjusted to allow for an additional 2,500 Chinook salmon. The Council recommended this increase to the Central GOA Chinook salmon PSC limit to enable a greater proportion of the overall pollock TAC to be harvested from the GOA and to more evenly balance the economic impacts to fishery participants in the Central GOA and fishery participants in the Western GOA. The analysis indicated that a Chinook salmon PSC limit in the Central GOA, based strictly on historic catch in the two areas with no adjustment, would have resulted in larger amounts of foregone pollock harvest by the pollock fishery in the Central GOA historically than the amount of pollock harvest that would have been foregone by the pollock fishery in the Western GOA under the corresponding limit in the Western GOA. The adjustment would likely reduce the amount of foregone pollock harvest in the Central GOA and the GOA as a whole. The adjustment would likely increase the total benefits realized from the harvest of the pollock resource and contribute toward the achievement of optimum yield from the GOA groundfish fishery as a whole, consistent with National Standard 1.
The EA/RIR/IRFA indicates that under this action, the Central and Western GOA pollock fisheries should be able to harvest the full pollock TAC in each area based on the lower, long-term (17 year) average bycatch rate, although they would be unable to harvest the full TAC based on the recent (8 year), higher average bycatch rate. The Council intends to maintain a constraint on the fleet as an incentive to reduce bycatch while still allowing for optimum yield from the groundfish fishery.
If Amendment 93 is approved, it is the Council's expectation that the PSC limits recommended in this action would be implemented in mid-2012. If Amendment 93 is approved and PSC limits are implemented in mid-2012, reduced PSC limits would apply in 2012, and these reduced PSC limits would apply for the C and D seasons only (August 25 through November 1). The Council recommended the PSC limits for the 2012 C and D seasons at the levels of 8,929 Chinook salmon in the GOA Central Reporting Area and 5,598 Chinook salmon in the GOA Western Reporting Area. If the Secretary approves the program, but NMFS cannot implement it before August 25, 2012, NMFS would implement it at the beginning of the next full fishing year (2013).
If approved, Amendment 93 would also require temporary retention of all salmon intercepted in the Central and Western GOA pollock fisheries until an observer is provided the opportunity to count the number of salmon and to collect scientific data or biological samples from the salmon. The Amendment would not allow the sale or personal use of retained salmon. The FMP would defer to regulations to describe the specific requirements for retaining salmon. The proposed rule for this action would establish the requirements for retaining and handling intercepted salmon species in the GOA pollock fisheries in order to allow observers to count and sample salmon to obtain scientific information before the salmon must be discarded or donated to the Prohibited Species Donation Program.
NMFS is soliciting public comments on proposed Amendment 93 through the end of the comment period (see
NMFS will not consider comments received after that date in the approval/disapproval decision on the Amendment. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period.
16 U.S.C. 1801
The Bureau of Industry and Security, U.S. Department of Commerce (“BIS”), has notified Xun Wang (“Wang”) of its intention to initiate an administrative proceeding against Wang pursuant to Section 766.3 of the Export Administration Regulations (the “Regulations”),
Beginning on or about June 15, 2006, and continuing through on or about March 2007, Xun Wang conspired and acted in concert with others, known and unknown, to bring about an act that constitutes a violation of the Regulations. The purpose of the conspiracy was to bring about the export of epoxy paint and epoxy paint thinner, items subject to the Regulations, to Pakistan, through China, for use in the Chasma 2 nuclear power plant that was under construction in Islamabad, Pakistan, and was a subordinate entity under the ownership and control of the Pakistan Atomic Energy Commission (“PAEC”), an entity that is listed on the Entity List set forth in Supplement No. 4 to Part 744 of the Regulations, without the required Department of Commerce license. The Chasma 2 nuclear plant was being constructed for PAEC by China Zhongyuan Engineering Corporation (“Zhongyuan”) with the assistance of subcontractor China Nuclear Industry Huaxing Construction Co. Ltd. (“Huaxing”). The epoxy paint and thinner were designated as EAR99
On or about June 8, 2006, Wang, at the time Managing Director of PPG Paints Trading (Shanghai) Co., Ltd. (“PPG Paints Trading”), learned that PPG's application for a U.S. export license to export the items to the PAEC's Chasma 2 plant had been denied. On or about June 15, 2006, Wang and other representatives of PPG Paints Trading met with Huaxing to discuss the denial of the license and whether PPG Paints Trading would be able to supply Huaxing with U.S.-origin PPG epoxy paint and thinner. During this meeting, Wang and Huaxing developed and agreed upon a scheme under which PPG Paints Trading would supply the PPG epoxy paint and thinner to Huaxing for use in the PAEC facility despite the lack of a U.S. export license. Under this scheme, a third-party Chinese distributor would be added to the transaction to facilitate obtaining the items from PPG and the transshipment of the items to Pakistan after their arrival in China. This transaction structure was designed to avoid the shipment of the items from the United States directly to the PAEC's Chasma 2 facility in Pakistan and the U.S. license requirement for such an export. Thereafter, the conspirators, including Xun Wang, took and/or directed actions in furtherance of the conspiracy, including, inter alia, selecting a third party in China to serve as the intermediary party in the transaction and arranging for the delivery of the items to China from PPG in the United States.
In so doing, Wang committed one violation of Section 764.2(d) of the Regulations.
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Import Administration, International Trade Administration, Department of Commerce.
Edythe Artman or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
On April, 27, 2011, the Department of Commerce (the Department) published the initiation of the administrative review of the antidumping duty order on glycine from the People's Republic of China (PRC) in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires that the Department complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 245 day time period for the preliminary results to 365 days.
The Department finds that it is not practicable to complete the preliminary results of this review within the original time frame because it needs to obtain additional information from the respondent company, Baoding Mantong Fine Chemistry, Co., Ltd., in order to complete its analysis. Because the Department requires additional time to obtain and analyze this information, it is not practicable to complete this review by the current deadline of December 1, 2011. Accordingly, the Department is extending the time limit for completion of the preliminary results of this administrative review until no later than March 30, 2012, which is 365 days from the last day of the anniversary month of this order. We intend to issue the final results no later than 120 days after publication of the preliminary results notice.
This extension is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that The Pacific Whale Foundation [Responsible Party: Gregory Kaufman; Principal Investigator: Daniela Maldini], 300 Maalaea Road, Suite 211, Wailuku, HI 96793, has applied in due form for a permit to conduct research on humpback whales (
Written, telefaxed, or email comments must be received on or before December 23, 2011.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI 96814-4700; phone (808) 944-2200; fax (808) 973-2941.
Written comments on this application should be submitted to the Chief, Permits, Conservation and Education Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Laura Morse or Joselyd Garcia-Reyes, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The proposed permit would authorize vessel based research on humpback whales in Maui County waters, Hawaii to quantify the potential for near misses between vessels and humpback whales, and define the probability of 'surprise encounters' with humpback whales in relation to time of day, environmental variables, vessel behavior, whale abundance, and individual sex and age classes. Up to 567 humpback whales may be approached annually for photo-identification and behavioral observation and all Hawaiian insular false killer whales (
A draft environmental assessment (EA) has been prepared in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public teleconference.
The NMFS Northwest Fisheries Science Center and Pacific Fishery Management Council (Council) will hold an online webinar to review and critique its groundfish stock assessment process in 2011. The online Groundfish Stock Assessment Process Review Workshop webinar is open to the public.
The Groundfish Stock Assessment Process Review Workshop webinar will commence at 1 p.m., Thursday, December 8, 2011 and continue until 5 p.m. or as necessary to complete business for the day.
To join the online Groundfish Stock Assessment Process Review Workshop webinar from the U.S. Pacific time zone, go to
To only join the audio teleconference of the Groundfish Stock Assessment Process Review Workshop from the U.S. or Canada, call the toll number 1 (408) 600-3600 (note: this is not a toll-free number) and use the access code 805-527-249 when prompted.
A public listening station for the Groundfish Stock Assessment Process Review Workshop webinar will also be available in the large conference room at the Council office, 7700 NE. Ambassador Place, Suite 101, Portland, OR 97220-1384; telephone: (503) 820-2280. Other public listening stations may be organized prior to the Groundfish Stock Assessment Process Review Workshop. For further information on public listening stations,
Mr. John DeVore, Pacific Fishery Management Council;
The purpose of the Groundfish Stock Assessment Process Review Workshop webinar is for participants in the Council's 2011 stock assessment process to consider the procedures used in 2011 to assess and update groundfish stock abundance and develop recommendations for improving the process for future assessments and future assessment reviews. No management actions will be decided in this workshop. Any recommendations developed at the workshop will be submitted for consideration by the Council at its March meeting in Sacramento, CA.
Although non-emergency issues not identified in the workshop agenda may come before the workshop participants for discussion, those issues may not be the subject of formal action during this workshop. Formal action at the workshop will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the workshop participants' intent to take final action to address the emergency.
This workshop is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2280 at least 5 days prior to the workshop date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to Jennifer Lewis, Ph.D., Tropical Dolphin Research Foundation, Aventura, FL to conduct research on bottlenose dolphins (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824-5312; fax (727) 824-5309.
Joselyd Garcia-Reyes or Carrie Hubard, (301) 427-8401.
On June 10, 2011, notice was published in the
Permit No. 16314 authorizes Dr. Lewis to conduct photo-identification surveys and biopsy sampling in Whitewater Bay, Shark River, Ponce de Leon Bay and Florida Bay, which are found in Everglades National Park. Up to 3,020 bottlenose dolphins could be taken by level B harassment each year during photo-identification surveys. Additionally, up to 38 bottlenose dolphins from each location could be taken by level A harassment annually, to acquire 30 successful biopsy samples from each location over the life of the permit. Research would stop when the desired number of samples has been obtained. The permit is valid through November 28, 2016.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to Dan R. Salden, Ph.D., Hawaii Whale Research Foundation, 52 Cheshire Drive, Maryville, IL 62062 to conduct research on humpback whales (
The permit and related documents are available for review upon written request or by appointment in the following offices: See
Joselyd Garcia-Reyes or Carrie Hubard, (301) 427-8401.
On January 31, 2011, notice was published in the
Authorized research will include harassment of humpback whales, Hawaiian Insular false killer whales (
An environmental assessment (EA) was prepared analyzing the effects of the permitted activities on the human environment in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Documents may be reviewed in the following locations:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376;
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907) 586-7221; fax (907) 586-7249; and
Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm. 1110, Honolulu, HI 96814-4700; phone (808) 944-2200; fax (808) 973-2941.
Wednesday, November 30, 2011; 10 a.m.-11 a.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters. For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Defense Logistics Agency, Department of Defense.
Revised Defense Logistics Agency Regulation (DLAR) 1000.22.
On May 18, 2011, the Defense Logistics Agency (DLA) published a Notice of Availability (NOA) in the
The final regulation is available for review on the following DLA Web site—
Office of the Secretary, Department of Defense (DoD).
Notice to Alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action would be effective without further notice on December 23, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Services, 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 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on November 17, 2011, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and
Defense Manpower Data Center Data Base (August 7, 2009, 74 FR 39666).
Delete entry and replace with “All Army, Navy, Air Force, Marine Corps, and Coast Guard officer and enlisted personnel who served on active duty from July 1, 1968 and after or who have been a member of a reserve component since July 1975 (hereafter the “Armed Forces”); retired Armed Forces personnel; active and retired members of the commissioned corps of the National Oceanic and Atmospheric Administration (NOAA) and the Public Health Service (PHS) (with Armed Forces above, hereafter referred to as the “Uniformed Services”). All individuals examined to determine eligibility for military service at an Armed Forces Entrance and Examining Station from July 1, 1970, and later.
Current and former DoD civilian employees since January 1, 1972. Veterans who used the Veterans Education Assistance Program (VEAP) from January 1977 through June 1985.
Participants in the Department of Health and Human Services National Longitudinal Survey.
Survivors of retired Armed Forces personnel who are eligible for or currently receiving disability payments or disability income compensation from the Department of Veterans Affairs; surviving spouses of active or retired deceased Armed Forces personnel; 100% disabled veterans and their survivors; and survivors of retired officers of NOAA and PHS who are eligible for, or are currently receiving, Federal payments due to the death of the retiree.
Individuals receiving disability compensation from the Department of Veterans Affairs or who are covered by a Department of Veterans Affairs' insurance or benefit program; dependents of active and retired members of the Uniformed Services, selective service registrants.
All Federal civilian retirees.
All non-appropriated funded individuals who are employed by the Department of Defense.
Individuals who were or may have been the subject of tests involving chemical or biological human subject testing; and individuals who have inquired or provided information to the Department of Defense concerning such testing.
Individuals who are authorized web access to DMDC computer systems and databases.”
Delete entry and replace with “Computerized personnel/employment/pay records consisting of name, Service Number, Selective Service Number, Social Security Number (SSN), DoD Identification Number, citizenship data, compensation data, demographic information such as home town, age, sex, race, and educational level; civilian occupational information; performance ratings of DoD civilian employees and military members; reasons given for leaving military service or DoD civilian service; civilian and military acquisition work force warrant location, training and job specialty information; military personnel information such as rank, assignment/deployment, length of service, military occupation, aptitude scores, post-service education, training, and employment information for veterans; participation in various in-service education and training programs; date of award of certification of military experience and training; military hospitalization and medical treatment, immunization, and pharmaceutical dosage records; home and work addresses; and identities of individuals involved in incidents of child and spouse abuse, and information about the nature of the abuse and services provided.
CHAMPUS claim records containing enrollee, patient and health care facility, provided data such as cause of treatment, amount of payment, name and Social Security or tax identification number of providers or potential providers of care.
Selective Service System registration data.
Primary and secondary fingerprints of Military Entrance Processing Command (MEPCOM) applicants.
Department of Veterans Affairs disability payment records. Credit or financial data as required for security background investigations.
Criminal history information on individuals who subsequently enter the military.
OPM/CENTRAL-1, Civil Service Retirement and Insurance Records, including postal workers covered by Civil Service Retirement, containing Civil Service Claim number, date of birth, name, provision of law retired under, gross annuity, length of service, annuity commencing date, former employing agency and home address. These records provided by OPM for approved computer matching.
Non-appropriated fund employment/personnel records consist of Social Security Number (SSN), name, and work address.
Military drug test records containing the Social Security Number (SSN), date of specimen collection, date test results reported, reason for test, test results, base/area code, unit, service, status (active/reserve), and location code of testing laboratory.
Names of individuals, as well as DMDC assigned identification numbers, and other user-identifying data, such as organization, Social Security Number (SSN), email address, phone number, of those having web access to DMDC computer systems and databases, to include dates and times of access.”
Delete entry and replace with “5 U.S.C. App. 3 (Pub. L. 95-452, as amended (Inspector General Act of 1978)); 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 1562, Database on Domestic Violence Incidents; 20 U.S.C. 1070(f)(4), Higher Education Opportunity Act; Pub.L. 106-265, Federal Long-Term Care Insurance; 10 U.S.C. 2358, Research and Development Projects; and E.O. 9397 (SSN), as amended.”
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, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. To the Department of Veterans Affairs (DVA):
a. To provide Uniformed Service personnel and pay data for present and former Uniformed Service personnel for the purpose of evaluating use of veterans' benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying Armed Service personnel data to the DVA and
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former Uniformed Service personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
(1) Providing full identification of active duty Uniformed Service personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing identification of reserve duty, including full time support National Guard/Reserve Armed Forces personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
f. To provide identifying Uniformed Service personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
2. To the Office of Personnel Management (OPM):
a. Consisting of personnel/employment/financial data for the purpose of carrying out OPM's management functions. Records disclosed concern pay, benefits, retirement deductions and any other information necessary for those management functions required by law (Pub. L. 83-598, 84-356, 86-724, 94-455 and 5 U.S.C. 1302, 2951, 3301, 3372, 4118, 8347).
b. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a) for the purpose of:
(1) Exchanging civil service and Reserve personnel data to identify those individuals of the Reserve forces who are employed by the Federal government in a civilian position. The purpose of the match is to identify those particular individuals occupying critical positions as civilians and cannot be released for extended active duty in the event of mobilization. Employing Federal agencies are informed of the reserve status of those affected personnel so that a choice of terminating the position or the reserve assignment can be made by the individual concerned. The authority for conducting the computer match is contained in E.O. 11190, Providing for the Screening of the Ready Reserve of the Armed Forces.
c. Matching for administrative purposes to include updated employer addresses of Federal civil service employees who are reservists and demographic data on civil service employees who are reservists.
3. To the Internal Revenue Service (IRS) for the purpose of obtaining home addresses to contact Reserve component members for mobilization purposes and for tax administration. For the purpose of conducting aggregate statistical analyses on the impact of Armed Forces personnel of actual changes in the tax laws and to conduct aggregate statistical analyses to lifestream earnings of current and former military personnel to be used in studying the comparability of civilian and military pay benefits. To aid in administration of Federal Income Tax laws and regulations, to identify non-compliance and delinquent filers.
4. To the Department of Health and Human Services (DHHS):
a. To the Office of the Inspector General, DHHS, for the purpose of identification and investigation of DoD civilian employees and Armed Forces members who may be improperly receiving funds under the Temporary Assistance for Needy Families (TANF).
a. To the Office of Child Support Enforcement, Federal Parent Locator Service, DHHS, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; and for conducting computer matching as authorized by E.O. 12953 to facilitate the enforcement of child support owed by delinquent obligors within the entire civilian Federal government and the Uniformed Services (active and retired). Identifying delinquent obligors will allow State Child Support Enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
Information requested by DHHS is not disclosed when it would contravene U.S. national policy or security interests (42 U.S.C. 653(e)).
Quarterly wage information is not disclosed for those individuals performing intelligence or counter intelligence functions and a determination is made that disclosure could endanger the safety of the individual or compromise an ongoing investigation or intelligence mission (42 U.S.C. 653(n)).
c. To the Health Care Financing Administration (HCFA), DHHS for the purpose of monitoring HCFA reimbursement to civilian hospitals for Medicare patient treatment. The data will ensure no Department of Defense physicians, interns, or residents are counted for HCFA reimbursement to hospitals.
d. To the Centers for Disease Control and the National Institutes of Mental Health, DHHS, for the purpose of conducting studies concerned with the health and well being of Uniformed Services personnel or veterans, to include family members.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the Public Assistance Reporting Information System (PARIS) for the purpose of determining continued eligibility and help eliminate fraud and abuse in benefit programs by identifying individuals who are receiving Federal compensation or pension payments and also are receiving payments pursuant to Federal benefit programs being administered by the States.
5. To the Social Security Administration (SSA):
a. To the Office of Research and Statistics for the purpose of:
(1) Conducting statistical analyses of impact of military service and use of GI Bill benefits on long term earnings.
(2) Obtaining current earnings data on individuals who have voluntarily left military service or DoD civil employment so that analytical personnel studies regarding pay, retention and benefits may be conducted.
Earnings data obtained from the SSA and used by DoD does not contain any information that identifies the individual about whom the earnings data pertains.
b.
c. To the Client Identification Branch for the purpose of validating the assigned Social Security Number for individuals in DoD personnel and pay files, using the SSA Enumeration Verification System (EVS).
d. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
6. To the Selective Service System (SSS) for the purpose of facilitating compliance of members and former members of the Armed Forces, both active and reserve, with the provisions of the Selective Service registration regulations (50 U.S.C. App. 451 and E.O. 11623).
7. To the Department of Labor (DOL) to reconcile the accuracy of unemployment compensation payments made to former DoD civilian employees and members of the Uniformed Services by the states. To the Department of Labor to survey Armed Forces separations to determine the effectiveness of programs assisting veterans to obtain employment.
8. To Federal and Quasi Federal agencies, territorial, state, and local governments to support personnel functions requiring data on prior Armed Forces service credit for their employees or for job applicants. Information released includes name, Social Security Number, and military or civilian address of individuals. To detect fraud, waste and abuse pursuant to the authority contained in the Inspector General Act of 1978, as amended (Pub.L. 95-452) for the purpose of determining eligibility for, and/or continued compliance with, any Federal benefit program requirements.
9. To state and local law enforcement investigative agencies to obtain military history information for the purpose of ongoing investigations.
10. To Federal and Quasi Federal agencies, territorial, state and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of Uniformed Service and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. has determined that the research purpose (1) Cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. has required the recipient to (1) Establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) in emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. has secured a written statement attesting to the recipient's understanding of, and willingness to abide by these provisions.
11. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
12. To Federal and state agencies for purposes of validating demographic data (
13. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108-136, Section 1701, and E.O. 13269, Expedited Naturalization).
14. To Federal and State agencies, as well as their contractors and grantees, for purposes of providing military wage, training, and educational information so that Federal-reporting requirements, as mandated by statute, such as the Workforce Investment Act (29 U.S.C. 2801,
15. To Federal Agencies, including the Department of Education, to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of identifying dependent children of those Armed Forces members killed in Operation Iraqi Freedom and Operation Enduring Freedom (OIF/OEF) Afghanistan Only for possible benefits.
The DoD ‘Blanket Routine Uses’ set forth at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices apply to this system.
Military drug test information involving individuals participating in a drug abuse rehabilitation program shall be confidential and be disclosed only for the purposes and under the circumstances expressly authorized in 42 U.S.C. 290dd-2. This statute takes precedence over the Privacy Act of 1974, in regard to accessibility of such records except to the individual to whom the record pertains. The DoD ‘Blanket Routine Uses’ do not apply to these types of records.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Officer, Office of Freedom of Information, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the full name, Social Security Number (SSN), date of birth, current address, and telephone number of the individual.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed within the United States, its territories, possessions, or
If executed outside the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).’
Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for their representative to act on their behalf.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the name and number of this system of records notice along with the full name, Social Security Number (SSN), date of birth, current address, and telephone number of the individual and be signed.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).’
If executed outside the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).’
Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for their representative to act on their behalf.”
Delete entry and replace with “Record sources are individuals via survey questionnaires, the Uniformed Services, the Department of Veterans Affairs, the Office of Personnel Management, Environmental Protection Agency, Department of Health and Human Services, Department of Energy, Executive Office of the President, and the Selective Service System.”
Defense Manpower Data Center Data Base.
Naval Postgraduate School Computer Center, Naval Postgraduate School, Monterey, CA 93943-5000.
All Army, Navy, Air Force, Marine Corps, and Coast Guard officer and enlisted personnel who served on active duty from July 1, 1968, and after or who have been a member of a reserve component since July 1975 (hereafter the “Armed Forces”); retired Armed Forces personnel; active and retired members of the commissioned corps of the National Oceanic and Atmospheric Administration (NOAA) and the Public Health Service (PHS) (with Armed Forces above, hereafter referred to as the “Uniformed Services”). All individuals examined to determine eligibility for military service at an Armed Forces Entrance and Examining Station from July 1, 1970, and later.
Current and former DoD civilian employees since January 1, 1972. Veterans who used the Veterans Education Assistance Program (VEAP) from January 1977 through June 1985.
Participants in the Department of Health and Human Services National Longitudinal Survey.
Survivors of retired Armed Forces personnel who are eligible for or currently receiving disability payments or disability income compensation from the Department of Veterans Affairs; surviving spouses of active or retired deceased Armed Forces personnel; 100% disabled veterans and their survivors; and survivors of retired officers of NOAA and PHS who are eligible for, or are currently receiving, Federal payments due to the death of the retiree.
Individuals receiving disability compensation from the Department of Veterans Affairs or who are covered by a Department of Veterans Affairs' insurance or benefit program; dependents of active and retired members of the Uniformed Services, selective service registrants.
All Federal civilian retirees.
All non-appropriated funded individuals who are employed by the Department of Defense.
Individuals who were or may have been the subject of tests involving chemical or biological human subject testing; and individuals who have inquired or provided information to the Department of Defense concerning such testing.
Individuals who are authorized web access to DMDC computer systems and databases.
Computerized personnel/employment/pay records consisting of name, Service Number, Selective Service Number, Social Security Number (SSN), DoD Identification Number, citizenship data, compensation data, demographic information such as home town, age, sex, race, and educational level; civilian occupational information; performance ratings of DoD civilian employees and military members; reasons given for leaving military service or DoD civilian service; civilian and military acquisition work force warrant location, training and job specialty information; military personnel information such as rank, assignment/deployment, length of service, military occupation, aptitude scores, post-service education, training, and employment information for veterans; participation in various in-service education and training programs; date of award of certification of military experience and training; military hospitalization and medical treatment, immunization, and pharmaceutical dosage records; home and work addresses; and identities of individuals involved in incidents of child and spouse abuse, and information about the nature of the abuse and services provided.
CHAMPUS claim records containing enrollee, patient and health care facility, provided data such as cause of treatment, amount of payment, name and Social Security or tax identification number of providers or potential providers of care.
Selective Service System registration data.
Primary and secondary fingerprints of Military Entrance Processing Command (MEPCOM) applicants.
Department of Veterans Affairs disability payment records.
Credit or financial data as required for security background investigations.
Criminal history information on individuals who subsequently enter the military.
Extract from Office of Personnel Management (OPM) OPM/CENTRAL-1, Civil Service Retirement and Insurance Records, including postal workers covered by Civil Service Retirement, containing Civil Service Claim number, date of birth, name, provision of law retired under, gross annuity, length of service, annuity commencing date, former employing agency and home
Non-appropriated fund employment/personnel records consist of Social Security Number (SSN), name, and work address.
Military drug test records containing the Social Security Number (SSN), date of specimen collection, date test results reported, reason for test, test results, base/area code, unit, service, status (active/reserve), and location code of testing laboratory.
Names of individuals, as well as DMDC assigned identification numbers, and other user-identifying data, such as organization, Social Security Number (SSN), email address, phone number, of those having web access to DMDC computer systems and databases, to include dates and times of access.
5 U.S.C. App. 3 (Pub. L. 95-452, as amended (Inspector General Act of 1978)); 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 1562, Database on Domestic Violence Incidents; 20 U.S.C. 1070(f)(4), Higher Education Opportunity Act; Pub. L. 106-265, Federal Long-Term Care Insurance; 10 U.S.C. 2358, Research and Development Projects; and E.O. 9397 (SSN), as amended.
The purpose of the system of records is to provide a single central facility within the Department of Defense to assess manpower trends, support personnel and readiness functions, to perform longitudinal statistical analyses, identify current and former DoD civilian and Armed Forces personnel for purposes of detecting fraud and abuse of pay and benefit programs, to register current and former DoD civilian and Armed Forces personnel and their authorized dependents for purposes of obtaining medical examination, treatment or other benefits to which they are qualified.
To collect debts owed to the United States Government and state and local governments.
Information will be used by agency officials and employees, or authorized contractors, and other DoD Components in the preparation of studies and policy as related to the health and well-being of current and past Armed Forces and DoD-affiliated personnel; to respond to Congressional and Executive branch inquiries; and to provide data or documentation relevant to the testing or exposure of individuals.
Armed Forces drug test records will be maintained and used to conduct longitudinal, statistical, and analytical studies and computing demographic reports. No personal identifiers will be included in the demographic data reports. All requests for Service specific drug testing demographic data will be approved by the Service designated drug testing program office. All requests for DoD wide drug testing demographic data will be approved by the DoD Coordinator for Drug Enforcement Policy and Support, 1510 Defense Pentagon, Washington, DC 20301-1510.
DMDC web usage data will be used to validate continued need for user access to DMDC computer systems and databases, to address problems associated with web access, and to ensure that access is only for official purposes.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. To the Department of Veterans Affairs (DVA):
a. To provide Uniformed Service personnel and pay data for present and former Uniformed Service personnel for the purpose of evaluating use of veterans' benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying Armed Service personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former Uniformed Service personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
(1) Providing full identification of active duty Uniformed Service personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing identification of reserve duty, including full time support National Guard/Reserve Armed Forces personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
f. To provide identifying Uniformed Service personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
2. To the Office of Personnel Management (OPM):
a. Consisting of personnel/employment/financial data for the purpose of carrying out OPM's management functions. Records disclosed concern pay, benefits, retirement deductions and any other information necessary for those management functions required by law (Pub.L. 83-598, 84-356, 86-724, 94-455 and 5 U.S.C. 1302, 2951, 3301, 3372, 4118, 8347).
b. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a) for the purpose of:
(1) Exchanging civil service and Reserve personnel data to identify those individuals of the Reserve forces who are employed by the Federal government in a civilian position. The purpose of the match is to identify those particular individuals occupying critical positions as civilians and cannot be released for extended active duty in the event of mobilization. Employing Federal agencies are informed of the reserve status of those affected personnel so that a choice of terminating the position or the reserve assignment can be made by the individual concerned. The authority for conducting the computer match is contained in E.O. 11190, Providing for the Screening of the Ready Reserve of the Armed Forces.
c. Matching for administrative purposes to include updated employer addresses of Federal civil service employees who are reservists and demographic data on civil service employees who are reservists.
3. To the Internal Revenue Service (IRS) for the purpose of obtaining home addresses to contact Reserve component members for mobilization purposes and for tax administration. For the purpose of conducting aggregate statistical analyses on the impact of Armed Forces personnel of actual changes in the tax laws and to conduct aggregate statistical analyses to lifestream earnings of current and former military personnel to be used in studying the comparability of civilian and military pay benefits. To aid in administration of Federal Income Tax laws and regulations, to identify non-compliance and delinquent filers.
4. To the Department of Health and Human Services (DHHS):
a. To the Office of the Inspector General, DHHS, for the purpose of identification and investigation of DoD civilian employees and Armed Forces members who may be improperly receiving funds under the Temporary Assistance for Needy Families (TANF).
a. To the Office of Child Support Enforcement, Federal Parent Locator Service, DHHS, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; and for conducting computer matching as authorized by E.O. 12953 to facilitate the enforcement of child support owed by delinquent obligors within the entire civilian Federal government and the Uniformed Services (active and retired). Identifying delinquent obligors will allow State Child Support Enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
Information requested by DHHS is not disclosed when it would contravene U.S. national policy or security interests (42 U.S.C. 653(e)).
Quarterly wage information is not disclosed for those individuals performing intelligence or counter intelligence functions and a determination is made that disclosure could endanger the safety of the individual or compromise an ongoing investigation or intelligence mission (42 U.S.C. 653(n)).
c. To the Health Care Financing Administration (HCFA), DHHS for the purpose of monitoring HCFA reimbursement to civilian hospitals for Medicare patient treatment. The data will ensure no Department of Defense physicians, interns, or residents are counted for HCFA reimbursement to hospitals.
d. To the Centers for Disease Control and the National Institutes of Mental Health, DHHS, for the purpose of conducting studies concerned with the health and well being of Uniformed Services personnel or veterans, to include family members.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the Public Assistance Reporting Information System (PARIS) for the purpose of determining continued eligibility and help eliminate fraud and abuse in benefit programs by identifying individuals who are receiving Federal compensation or pension payments and also are receiving payments pursuant to Federal benefit programs being administered by the States.
5. To the Social Security Administration (SSA):
a. To the Office of Research and Statistics for the purpose of:
(1) Conducting statistical analyses of impact of military service and use of GI Bill benefits on long term earnings.
(2) Obtaining current earnings data on individuals who have voluntarily left military service or DoD civil employment so that analytical personnel studies regarding pay, retention and benefits may be conducted.
Earnings data obtained from the SSA and used by DoD does not contain any information that identifies the individual about whom the earnings data pertains.
b. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a) to the Bureau of Supplemental Security Income for the purpose of verifying information provided to the SSA by applicants and recipients/beneficiaries, who are retired members of the Uniformed Services or their survivors, for Supplemental Security Income (SSI) or Special Veterans' Benefits (SVB). By law (42 U.S.C. 1006 and 1383), the SSA is required to verify eligibility factors and other relevant information provided by the SSI or SVB applicant from independent or collateral sources and obtain additional information as necessary before making SSI or SVB determinations of eligibility, payment amounts, or adjustments thereto.
c. To the Client Identification Branch for the purpose of validating the assigned Social Security Number for individuals in DoD personnel and pay files, using the SSA Enumeration Verification System (EVS).
d. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
6. To the Selective Service System (SSS) for the purpose of facilitating compliance of members and former members of the Armed Forces, both active and reserve, with the provisions of the Selective Service registration regulations (50 U.S.C. App. 451 and E.O. 11623).
7. To the Department of Labor (DOL) to reconcile the accuracy of unemployment compensation payments made to former DoD civilian employees and members of the Uniformed Services by the states. To the Department of Labor to survey Armed Forces separations to determine the effectiveness of programs assisting veterans to obtain employment.
8. To Federal and Quasi Federal agencies, territorial, state, and local governments to support personnel functions requiring data on prior Armed Forces service credit for their employees or for job applicants. Information released includes name, Social Security Number, and military or civilian address of individuals. To detect fraud, waste and abuse pursuant to the authority contained in the Inspector General Act of 1978, as amended (Pub. L. 95-452) for the purpose of determining eligibility for, and/or continued compliance with, any Federal benefit program requirements.
9. To state and local law enforcement investigative agencies to obtain military history information for the purpose of ongoing investigations.
10. To Federal and Quasi Federal agencies, territorial, state and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of Uniformed Service and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. has determined that the research purpose (1) Cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. has required the recipient to (1) Establish reasonable administrative, technical, and physical safeguards to
d. has secured a written statement attesting to the recipient's understanding of, and willingness to abide by these provisions.
11. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
12. To Federal and state agencies for purposes of validating demographic data (
13. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub.L. 108-136, Section 1701, and E.O. 13269, Expedited Naturalization).
14. To Federal and State agencies, as well as their contractors and grantees, for purposes of providing military wage, training, and educational information so that Federal-reporting requirements, as mandated by statute, such as the Workforce Investment Act (29 U.S.C. 2801,
15. To Federal Agencies, including the Department of Education, to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of identifying dependent children of those Armed Forces members killed in Operation Iraqi Freedom and Operation Enduring Freedom (OIF/OEF) Afghanistan Only for possible benefits.
The DoD `Blanket Routine Uses' set forth at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices apply to this system.
Military drug test information involving individuals participating in a drug abuse rehabilitation program shall be confidential and be disclosed only for the purposes and under the circumstances expressly authorized in 42 U.S.C. 290dd-2. This statute takes precedence over the Privacy Act of 1974, in regard to accessibility of such records except to the individual to whom the record pertains. The DoD ‘Blanket Routine Uses’ do not apply to these types of records.
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Electronic storage media.
Retrieved by name, Social Security Number (SSN), DoD ID number, occupation, or any other data element contained in the system.
Access to personal information is restricted to those who require the records in the performance of their official duties. Access to personal information is further restricted by the use of Common Access Cards (CAC). Physical entry is restricted by the use of locks, guards, and administrative procedures. All individuals granted access to this system of records are to have taken Information Assurance and Privacy Act training; all have been through the vetting process and have ADP ratings.
The records are used to provide a centralized system within the Department of Defense to assess manpower trends, support personnel functions, perform longitudinal statistical analyses, and conduct scientific studies or medical follow-up programs and other related studies/analyses. Records are retained as follows:
(1) Input/source records are deleted or destroyed after data have been entered into the master file or when no longer needed for operational purposes, whichever is later. Exception: Apply NARA-approved disposition instructions to the data files residing in other DMDC data bases.
(2) The Master File is retained permanently. At the end of the fiscal year, a snapshot is taken and transferred to the National Archives in accordance with 36 CFR part 1228.270 and 36 CFR part 1234.
(3) Outputs records (electronic or paper summary reports) are deleted or destroyed when no longer needed for operational purposes. Note: This disposition instruction applies only to record keeping copies of the reports retained by DMDC. The DoD office requiring creation of the report should maintain its record keeping copy in accordance with NARA approved disposition instructions for such reports.
(4) System documentation (codebooks, record layouts, and other system documentation) are retained permanently and transferred to the National Archives along with the master file in accordance with 36 CFR part 1228.270 and 36 CFR part 1234.
Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Officer, Office of Freedom of Information, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the full name, Social Security Number (SSN), date of birth, current address, and telephone number of the individual.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).’
If executed outside the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).’
Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for their representative to act on their behalf.
Individuals seeking access to information about themselves contained
Written requests should contain the name and number of this system of records notice along with the full name, Social Security Number (SSN), date of birth, current address, and telephone number of the individual and be signed.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).’
If executed outside the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).’
Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for their representative to act on their behalf.
The Office of the Secretary of Defense rules for accessing records, for contesting contents and appealing initial agency determinations are published in Office of the Secretary of Defense Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Record sources are individuals via survey questionnaires, the Uniformed Services, the Department of Veterans Affairs, the Office of Personnel Management, Environmental Protection Agency, Department of Health and Human Services, Department of Energy, Executive Office of the President, and the Selective Service System.
None.
Office of the Secretary, Department of Defense.
Notice of Updated TYA Premiums for CY 2012.
The interim final rule published in the
CY 2012 rates contained in this notice are effective for services on or after January 1, 2012.
Mr. Mark A. Ellis, TRICARE Management Activity (TMA), Policy and Benefits Branch, 5111 Leesburg Pike, Suite 810A, Falls Church, Virginia 22041; or call (703) 681-0039.
The interim final rule published in the
TMA has updated the monthly premiums for CY 2012 as shown below:
The above premiums are effective for services rendered on or after January 1, 2012.
Department of the Air Force, Department of Defense (DoD).
Notice to delete a system of records.
The Department of the Air Force is deleting a systems of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on December 23, 2011 unless comments are received which result in a contrary determination.
Send comments, identified by docket number and title, by any of the following methods:
•
•
Mr. Charles J. Shedrick, Department of the Air Force Privacy Office, Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information officer,
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The Department of the Air Force proposes to delete one system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Deletion:
Freedom of Information Act Appeal Records (December 12, 2008, 73 FR 75688).
Reason: Based upon a recent review of F051 AFJA A, The Freedom of Information Act Appeal Records, by the Department of the Air Force, it has been determined that all information contained in F051 AFJA A has been consolidated into F033 AF A, Information Requests-Freedom of Information Act (May 19, 2011, 76 FR 28962), and can therefore be deleted.
Department of the Army, DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Army announces the following proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by January 23, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instructions, please write to the Project Manager (PM) Department of Defense (DoD) Biometrics, 200 Stovall St., Alexandria, VA 22332.
This collection supports DoD by verifying or identifying individuals such as terrorists, combatants, makers of explosive devices, detainees, criminals, locally employed non-U.S. person and other persons of interest. Such identification helps military operations including detainee management and questioning, base access, counterintelligence screening, border control, displaced persons management and a host of other missions.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before January 23, 2012.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-(800) 877-8339.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 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 has authorized its contractor, Primus Solutions, Inc., (Primus) of Greenbelt, MD, to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI).
Access to the confidential data will occur on or about November 17, 2011.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPPT-2003-0004. All documents in the docket are listed in the docket index available at
Under EPA Contract Number EP-W-11-024, Task Order Number 22, contractor Primus of 6303 Ivy Lane, Suite 130, Greenbelt, MD, will assist the Office of Pollution Prevention and Toxics (OPPT) in managing the Confidential Business Information Center (CBIC), which is the centralized point of contact for TSCA CBI records and serves as the repository for these records. Primus will also receive, data enter, copy, track, and distribute records in accordance with the
In accordance with 40 CFR 2.306(j), EPA has determined that under EPA Contract Number EP-W-11-024, Task Order Number 22, Primus will require access to CBI submitted to EPA under all sections of TSCA to perform successfully the duties specified under the contract. Primus' personnel will be given access to information submitted to EPA under all sections of TSCA. Some of the information may be claimed or determined to be CBI.
EPA is issuing this notice to inform all submitters of information under all sections of TSCA that EPA may provide Primus access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this contract will take place at EPA Headquarters in accordance with EPA's
Access to TSCA data, including CBI, will continue until October 2, 2016. If the contract is extended, this access will also continue for the duration of the extended contract without further notice.
Primus' personnel will be required to sign nondisclosure agreements and will be briefed on appropriate security procedures before they are permitted access to TSCA CBI.
Environmental protection, Confidential business information.
Environmental Protection Agency (EPA).
Notice of adequacy.
In this notice, EPA is notifying the public that the Agency has found that the motor vehicle emissions budgets (MVEBs) for particulate matter with an aerodynamic diameter of a nominal 10 microns or less (PM
This finding is effective December 8, 2011.
John Ungvarsky, U.S. EPA, Region IX, Air Division AIR-2, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 972-3963 or
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
Today's notice is simply an announcement of a finding that we have already made. EPA Region IX sent a letter to CARB on November 4, 2011 stating that the MVEBs in the submitted Sacramento PM
Receipt of the MVEBs in the Sacramento PM
Transportation conformity is required by Clean Air Act section 176(c). EPA's conformity rule requires that transportation plans, transportation improvement programs, and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do conform. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which we determine whether a SIP's MVEBs are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4) which was promulgated in our August 15, 1997 final rule (62 FR 43780, 43781-43783). We have further described our process for determining the adequacy of submitted SIP budgets in our July 1, 2004 final rule (69 FR 40004, 40038), and we used the information in these resources in making our adequacy determination. Please note that an adequacy review is separate from EPA's completeness review, and should not be used to prejudge EPA's ultimate approval action for the SIP. Even if we find a budget adequate, the SIP could later be disapproved.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Notice.
The Agency is announcing the availability of a Pesticide Registration Notice (PR Notice) regarding the data development efforts of the Non-Dietary Exposure Task Force (NDETF). This PR Notice (PR Notice 2011-2) was issued by the Agency on November 10, 2011. PR Notices are issued by the Office of Pesticide Programs to inform pesticide registrants and other interested persons about important policies, procedures, and registration related decisions, and serve to provide guidance to pesticide registrants and OPP personnel. This particular PR Notice updates PR Notice 2000-7 that initially announced the formation of the NDETF. The updated Notice provides current information concerning the NDETF's development of data supporting pesticide registration, in which registrants may wish to participate.
Richard P. Dumas, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001;
You may be potentially affected by this notice if you register pesticide products intended for residential uses under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2011-0877.
The Agency is announcing the issuance of Pesticide Registration Notice (PR-2011-2) that addresses the data development efforts of the NDETF. The formation of the NDETF was initially announced in PR Notice 2000-7 which was signed on August 4, 2000. When registering or periodically reviewing an existing registration, the Agency evaluates the potential risks to people from exposure to the pesticide in and around the home. The NDETF was formed to develop information on exposure to pesticides that can be used by EPA, and other regulatory agencies responsible for assuring the safety of pesticides. Since the initial notice in 2000, the membership of the task force has changed and the specific data needs have been better defined. The purpose of the PR Notice is to describe what data the NDETF has generated and plans to generate, to describe how EPA expects to use the data, and to inform registrants of the opportunity to join NDETF.
The PR Notice discussed in this notice is intended to provide information to EPA personnel and decision makers and to pesticide registrants. While the requirements in the statutes and Agency regulations are binding on EPA and the applicants, this PR Notice is not binding on either EPA or pesticide registrants, and EPA may depart from the guidance where circumstances warrant and without prior notice. Likewise, pesticide registrants may assert that the guidance is not appropriate generally or not applicable to a specific pesticide or situation.
Environmental protection, Administrative practice and procedure, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice; request for public comment.
The EPA is hereby providing notice of a proposed prospective purchaser agreement (Agreement) concerning 4057 and 4059 Goodwin Avenue, Los Angeles, California (Property). The Agreement is entered into pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9601,
EPA will receive written comments relating to the settlement until December 23, 2011. EPA will consider all comments it receives during this period, and may modify or withdraw consent to the settlement if any comments disclose facts or considerations indicating that the settlement is inappropriate, improper, or inadequate.
A copy of the settlement document may be obtained by calling (415) 820-4700 and requesting a copy of the document.
Written comments should be addressed to Marie Rongone, U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street (mail code ORC-3), San Francisco, California 94105-3901, or may be faxed to her at (415) 947-3570 or sent by email to
Additional information about the Prospective Purchaser Agreement for 4057 and 4059 Goodwin Avenue, Los Angeles, California, may be obtained by calling Marie Rongone at (415) 972-3891 or Lisa Hanusiak at (415) 972-3152.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of requests by registrants to voluntarily cancel certain pesticide registrations. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless the registrants withdraw their requests. If these requests are granted, any sale, distribution, or use of products listed in this notice will be permitted after the registrations have been canceled only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before December 21, 2011.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-1017, by one of the following methods:
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Submit written withdrawal request by mail to: Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. ATTN: Maia Tatinclaux.
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Maia Tatinclaux, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 347-0123; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. If you have any questions regarding the information in this notice, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This notice announces receipt by the Agency of requests from registrants to cancel 28 pesticide products registered under FIFRA section 3 or 24(c). These registrations are listed in sequence by registration number (or company number and 24(c) number) in Table 1 of this unit. The cancellation of the two tralomethrin products, EPA Reg. Nos. 065092-00001 and 075015-00001 will be effective December 15, 2014 and are the last registered products containing this active ingredient.
Unless the Agency determines that there are substantive comments that warrant further review of the requests or the registrants withdraw their requests, EPA intends to issue an order in the
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in this unit.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. In addition, FIFRA section 6(f)(1)(C) requires that EPA provide a 180-day comment period on a request for voluntary cancellation or termination of any minor agricultural use before granting the request, unless:
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants in Table 2 of Unit II have requested that EPA waive the 180-day comment period. Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for cancellation should submit such withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the cancellation action.
EPA anticipates allowing registrants to sell and distribute existing stocks of these products for 1 year after publication of the Cancellation Order in the
The cancellation of these products will be effective December 15, 2014. Thereafter, registrants will be prohibited from selling or distributing these two pesticide products, except for export consistent with FIFRA section 17 or for proper disposal. Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products.
Environmental protection, Pesticides and pests.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following Ocean Transportation Intermediary license has been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515, effective on the corresponding date shown below:
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for a license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF)—Ocean Transportation Intermediary (OTI) pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR 515). Notice is also hereby given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a license.
Interested persons may contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523-5843 or by email at
Dated: November 18, 2011.
Board of Governors of the Federal Reserve System (Board).
Notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Board, the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (the “agencies”) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies' publication for public comment of a proposal to extend, with revision, the Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002) and the Report of Assets and Liabilities of a Non-U.S. Branch that is Managed or Controlled by a U.S. Branch or Agency of a Foreign (Non-U.S.) Bank (FFIEC 002S), which are currently approved information collections. The Board is publishing this proposal on behalf of the agencies. At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the FFIEC and the agencies should modify the reports. The Board will then submit the reports to OMB for review and approval.
Comments must be submitted on or before January 23, 2012.
Interested parties are invited to submit written comments to the agency listed below. All comments will be shared among the agencies. You may submit comments, identified by FFIEC 002 (7100-0032), by any of the following methods:
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503, or by fax to (202) 395-6974.
Additional information or a copy of the collections may be requested from Cynthia M. Ayouch, Federal Reserve Board Clearance Officer, (202) 452-3829, Division of Research and Statistics, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may call (202) 263-4869.
U.S. branches and agencies of foreign banks (branches) currently report “other securities” held for investment (
As highlighted by the recent financial crisis and its aftermath, the ability to assess credit availability is a key consideration for monetary policy, financial stability, and the supervision and regulation of the banking system. However, the information currently available to policymakers both within and outside the agencies is insufficient to accurately monitor the extent to which depository institutions are providing credit to households and businesses. In its current form, the FFIEC 002 report collects data on the amount of loans to both households and businesses that are outstanding on institutions' books at the end of each quarter. However, the underlying flow of loan originations cannot be deduced from these quarter-end data owing to the myriad of factors and banking activities that routinely affect the amount of outstanding loans held by institutions, including activities such as loan paydowns, extensions, purchases and sales, securitizations, and repurchases. Direct reporting of loan originations would allow the agencies to isolate the flow of credit creation from the effects of these other banking activities.
Economic research points to a crucial link between the availability of credit and macroeconomic outcomes.
The sources of loan growth—such as whether loans were made under commitment or not under commitment—also contain important insights for those monitoring financial stability or developing macroprudential regulatory policies.
In contrast, savings associations currently report data on loan originations, sales, and purchases in the Thrift Financial Report (TFR) (OTS 1313; OMB No. 1550-0023). On TFR Schedule CF, Consolidated Cash Flow Information, savings associations report by major loan category the dollar amount of loans that were closed or disbursed, loans and participations purchased, and loan sales during the quarter. In addition, on TFR Schedule
The agencies propose to begin collecting data on loan originations from branches with total assets of $300 million or more because, as outlined in detail above, this information would be of substantial benefit in light of the fact that the data currently available for banking organizations are inadequate for monetary policy and financial stability regulators to monitor and analyze credit flows and because the proposed data will support the agencies' supervisory efforts.
More specifically, for branches with $300 million or more in total assets, the agencies propose to collect quarterly information on loan originations for several important loan categories by introducing a new Schedule U, Loan Origination Activity.
In the proposed originations schedule, all branches with $300 million or more in total assets would report the amounts reported in Schedule C, Part I, as of the quarter-end report date that were originated during the quarter that ended on the report date for the following loan categories reported on a domestic office only basis:
• Construction, land development, and other land loans;
• Loans secured by multifamily (5 or more) residential properties;
• Loans secured by nonfarm nonresidential properties;
• Loans to commercial banks and other depository institutions in the U.S.;
• Loans to banks in foreign countries;
• Loans to other financial institutions;
• Commercial and industrial loans to U.S. addressees; and
• All other loans (as reported in Schedule C, Part I, item 8).
In addition, for each of the preceding loan categories, branches with $1 billion or more in total assets would separately disclose the portion of the quarter-end amount of loans originated during the quarter that was originated under a newly established commitment and the portion that was not originated under a commitment.
Loan originations that were made under a newly established commitment or a commitment that was renewed during the quarter are likely to more closely reflect the current lending standards and loan terms being applied by an institution, so an expansion or contraction in this subset of loans is indicative of current supply and demand conditions. In this regard, research has shown that loans not made under a commitment are more sensitive to changes in monetary policy than loans made under a commitment.
As mentioned above, all savings associations, many of which are small, have for many years reported in the TFR the dollar amount of loans that were closed or disbursed, loans and participations purchased, and loan sales during the quarter by major loan category. Thus, the additional reporting burden of proposed FFIEC 002 Schedule U for branches with $300 million or more in total assets may be manageable for banking institutions. Nevertheless, because branches have not previously been required to report data pertaining to loan originations for FFIEC 002 reporting purposes, the agencies recognize that branches' data systems may not at present be designed to identify and capture data on loans originated during the quarter that ended on the report date. The agencies request comment on the ability of branches' existing loan systems to generate the data proposed for Schedule U. If this information is not currently available, the agencies request comment on how burdensome it would be to adapt current systems to report the proposed origination data for Schedule U. To the extent that existing loan systems enable branches to track data on loans originated during the quarter by loan category in a different manner than has been proposed, branches are invited to suggest alternative ways in which such origination data could be collected in the FFIEC 002 report and to explain how an alternative would meet the agencies' data needs as described above in this section.
Comments are invited on:
a. Whether the information collections are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
b. The accuracy of the agencies' estimate of the burden of the information collections, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this notice will be shared among the agencies. All comments will become a matter of public record.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning organization and direction of work. A notice published in the
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before December 23, 2011
Submit comments identified by Information Collection 9000-0064, Organization and Direction of Work, by any of the following methods:
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Mr. Curtis Glover, Procurement Analyst, Federal Acquisition Policy Division, GSA, telephone (202) 501-1448, or via email at
When the Government awards a cost-reimbursement construction contract, the contractor must submit to the contracting officer and keep current a chart showing the general executive and administrative organization, the personnel to be employed in connection with the work under the contract, and their respective duties. The chart is used in the administration of the contract and as an aid in determining cost. The chart is used by contract administration personnel to assure the work is being properly accomplished at reasonable prices.
Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health, Office of Healthcare Quality.
Notice: Correction.
The Department of Health and Human Services published a notice in the
Mr. Daniel B. Gallardo,
In the
Expressions of interest for FY 2011-12 must be received no later than close of business on December 9, 2011.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Assessing the Feasibility of Disseminating EHC Products through Educational Activities.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by January 23, 2012.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve under the Paperwork Reduction Act of 1995 this collection of information from users of products provided by the John M. Eisenberg Clinical Decisions and Communications Science Center (Eisenberg Center). Information collected consists of feedback from managers, instructors, and learners about these health care guides and other products presented as part of Continuing Medical Education activities.
AHRQ is the lead agency charged with supporting research designed to improve the quality of healthcare, reduce its cost, improve patient safety, decrease medical errors, and broaden access to essential services. AHRQ's Eisenberg Center's mission is improving communication of research findings to a variety of audiences (“customers”), including consumers, clinicians, and health care policy makers. The Eisenberg Center compiles research results into useful formats for customer stakeholders. The Eisenberg Center also conducts investigations into effective communication of research findings in order to improve the usability and rapid incorporation of findings into medical practice. The Eisenberg Center is one of three components of AHRQ's Effective Health Care (EHC) Program.
A primary goal of the Eisenberg Center is to translate results from systematic reviews of evidence comparing the effectiveness of two or more clinical care processes into information that can be used to support clinical decision-making. The major products of such efforts are brief guides designed for clinicians, patients, and policymakers that summarize the evidence concerning the effectiveness of various diagnostic and treatment processes. All of the guides and other products are designed to help decision makers, including clinicians and health care consumers, use research evidence to maximize the benefits of health care, minimize harm, and optimize the use of health care resources.
The collections proposed under this project include activities to assess the feasibility of disseminating EHC products through Continuing Medical Education (CME) activities, specifically those planned and implemented by member organizations of the Society of Academic Continuing Medical Education (SACME). SACME is an organization with members in both the U.S. and Canada formed in 1976 to “promote the research, scholarship, evaluation and development of CME and Continuing Professional Development (CPD) that helps to enhance the performance of physicians and other healthcare professionals practicing in the United States, Canada, and elsewhere for purposes of improving individual and population health.”
For this project, the Eisenberg Center will work with six organizations selected from applications submitted by SACME members that had been invited to compete for funding. The Eisenberg Center selected sites based on the size of each organization's CME audience, the project's ability to inform the CME community, its degree of generalizability and replicability, and overall quality. Organizations selected for participation in the feasibility study have committed to specific activities designed to disseminate EHC Program summary guides to physicians, other clinicians, instructional faculty, and clinical researchers who participate in CME activities. Another partner in these efforts is the Association of American Medical Colleges (AAMC), which is assisting the project through access to MedEdPORTAL and CME4docs, two recently launched initiatives that are designed to encourage use of high quality CME resources by medical school faculty and others involved in development and delivery of CME.
This research has the following goals:
(1) Identify critical factors that enhance or impede integration of EHC products into CME activities;
(2) Assess strategies to remove, overcome, or work around barriers to integration of EHC products into CME programming with selected audiences;
(3) Confirm approaches that can be used in whole or in part to create and deliver effective CME instruction about EHC products (
(4) Review early educational program outcomes associated with integration of EHC products into CME activities.
This study is being conducted by AHRQ through its contractor, the Eisenberg Center—Baylor College of Medicine (EC-BMC), pursuant to AHRQ's statutory authority to conduct and support research, and disseminate information, on healthcare and on systems for the delivery of such care, including activities with respect to both the quality, effectiveness, efficiency, appropriateness and value of healthcare services and clinical practice. 42 U.S.C. 299a(a)(1) and (4).
To achieve the goals of this project the following activities and data collections will be implemented:
(1)
(2)
(3)
(4)
(5)
The collected data will be used to determine the feasibility of: (a) Including EHC products (
Exhibit 1 shows the estimated annualized burden for the respondents' time to participate in this research. Interviews will be conducted with each CME Project Director and will last about 30 minutes, while the focus group will last about 90 minutes. A maximum of 30 interviews will be conducted with CME faculty members. These are estimated to take 30 minutes to complete. The initial survey assessment of CME participant learners will take about 5 minutes to complete per questionnaire, as will the follow-up survey assessment. These questionnaires will be administered to the approximately 4,500 clinicians who will complete one of the study's CME activities. Each learner will be asked to complete both the initial and follow-up surveys.
Exhibit 2 shows the estimated annualized cost burden associated with the respondent's time to participate in this research. The total annual cost burden is estimated to be $65,233.
Exhibit 3 shows the total and annualized cost by the major cost components. The maximum cost to the Federal Government is estimated to be $166,417 annually.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (e) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
This gives notice under the Federal Advisory Committee Act (Pub. L. 92-463) of October 6, 1972, that the Board of Scientific Counselors, Office of Infectious Diseases, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS), has been renewed for a 2-year period through October 31, 2013.
For information, contact Robin Moseley, M.A.T., Designated Federal Officer, Board of Scientific Counselors, Office of Infectious Diseases, CDC, HHS, 1600 Clifton Road, NE., Mailstop D10, Atlanta, Georgia 30333, telephone (404) 639-4461 or fax (404) 235-3562.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting for the aforementioned subcommittee:
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, and will expire on August 3, 2013.
The agenda is subject to change as priorities dictate.
In the event an individual cannot attend, written comments may be submitted. Any written comments received will be provided at the meeting and should be submitted to the contact person below well in advance of the meeting.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (DHHS).
Notice.
The National Health and Nutrition Examination Survey (NHANES) will not be receiving DNA proposals in 2012. NHANES is changing its plan for making DNA available for genetic research and its proposal guidelines. NHANES anticipates that the DNA Bank will be open for proposals approximately January 2013.
Effective date is date of publication in the
Geraldine McQuillan, PhD, Division of Health and Nutrition Examination Surveys, National Center for Health Statistics, Centers for Disease Control and Prevention, 3311 Toledo Road, Room 4204, Hyattsville, MD 20782,
Dr. Geraldine McQuillan, Division of Health and Nutrition Examination Surveys, National Center for Health Statistics, Centers for Disease Control and Prevention, 3311 Toledo Road, Room 4204, Hyattsville, MD 20782,
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (DHHS).
Extension of the public comment period.
On September 21, 2011, the Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS), published a notice in the
CDC also published a supporting document for reference, the
The draft
Written comments must be received on or before December 23, 2011.
Written comments may be submitted electronically or by mail. To
You may also submit written comments to the following
Debbie Seem, Division of Healthcare Quality Promotion, National Center for Emerging and Zoonotic Diseases, Centers for Disease Control and Prevention, 1600 Clifton Road NE., Mailstop A-07, Atlanta, Georgia, 30329-4018;
Since 2008, HHS/CDC has collaborated with state and federal agencies, national partners, academicians, public and private health professionals, the transplant field, public health organizations, and other partners to revise and expand the 1994
As with the 1994
HHS/CDC worked with the University of Pennsylvania's Health System Center for Evidence-based Practice (CEP) and sought input in each phase of the
Administration for Children and Families, HHS.
Notice.
Statement of Organization, Functions, and Delegations of Authority. The Administration for Children and Families (ACF) has reorganized the Office of the Assistant Secretary (OAS) and the Administration on Developmental Disabilities (ADD). This reorganization realigns the President's Committee for People with Intellectual Disabilities Staff within the OAS and moves the function to ADD as a result of the Charter Amendment for PCPID governed by Public Law 92-463 signed by the Secretary, HHS, on May 9, 2011.
Sharon Lewis, Commissioner, Administration on Developmental Disabilities, 200 Independence Avenue SW., Washington, DC 20201, (202) 690-6590.
This notice amends Part K of the Statement of Organization, Functions and Delegations of Authority of the Department of Health and Human Services (HHS), Administration for Children and Families (ACF) as follows: Chapter KA, Office of the Assistant Secretary (OAS) last amended, 75 FR 60471-60473, September 30, 2010, and Chapter KC, Administration on Developmental Disabilities (ADD) last amended 75 FR 63186-63187, October 14, 2010.
A. Delete KA.10 Organization in its entirety and replace with the following: KA.10 Organization. The Office of the Assistant Secretary for Children and Families is headed by the Assistant Secretary for Children and Families who reports directly to the Secretary and consists of:
B. Delete KA.20 Functions B in Its entirety.
KC.00Mission. The Administration on Developmental Disabilities (ADD) advises the Secretary, through the Assistant Secretary for Children and Families, on matters relating to individuals with developmental disabilities and their families. ADD serves as the focal point in the Department to support and encourage the provision of quality services to individuals with developmental disabilities and their families. ADD assists states, through the design and implementation of a comprehensive and continuing state plan, in increasing the independence, productivity and community inclusion of individuals with developmental disabilities. These state plans make optimal use of existing Federal and state resources for the provision of services and supports to these individuals and their families to achieve these outcomes. ADD works
ADD administers two formula grant programs, State Developmental Disabilities Councils and Protection and Advocacy Systems, and two discretionary grant programs, University Affiliated Programs and Projects of National Significance, including Family Support. These programs support the provision of services to individuals with developmental disabilities and their families. In concert with other components of ACF as well as other public, private, and voluntary sector partners, ADD develops and implements research, demonstration and evaluation strategies for discretionary funding of activities designed to improve and enrich the lives of individuals with developmental disabilities. In addition, ADD serves as a resource in the development of policies and programs to reduce or eliminate barriers experienced by individuals with developmental disabilities through the identification of promising practices and dissemination of information. ADD supports and encourages programs or services, which prevent developmental disabilities and manages initiatives involving the private and voluntary sectors that benefit individuals with developmental and other disabilities and their families.
ADD provides staff and administrative support to the President's Committee for People with Intellectual Disabilities (Committee). In order to promote full participation of people with intellectual disabilities in their communities, the Committee provides advice to the President and to the Secretary of Health and Human Services (Secretary) through the Commissioner of ADD concerning a broad range of topics relating to people with intellectual disabilities.
KC.10Organization. The Administration on Developmental Disabilities (ADD) is headed by a Commissioner who reports directly to the Assistant Secretary for Children and Families. ADD consists of:
KC.20Functions. A. The Office of the Commissioner provides executive leadership and management strategies for all components of the Administration on Developmental Disabilities (ADD), and serves as the principal advisor to the Assistant Secretary for Children and Families, the Secretary, and other elements of the Department for individuals with developmental disabilities and their families. The Office plans, coordinates and controls ADD policy, planning and management activities which include the development of legislative proposals, regulations and policy issuances for ADD. The Office provides executive direction, leadership, and management strategy to ADD's components and establishes goals and objectives for ADD programs. The Office manages the formulation and execution of the program and operating budgets; provides administrative, personnel and information systems support services; serves as the ADD Executive Secretariat controlling the flow of correspondence; and coordinates with appropriate ACF components in implementing administrative requirements and procedures. The Office also initiates, executes and supports the development of interagency, intergovernmental and public-private sector agreements, committees, task forces, commissions or joint-funding efforts as appropriate.
The President's Committee for People with Intellectual Disabilities (PCPID) staff provides general staff support for a Presidential-level advisory body. It coordinates all meetings and Congressional hearing arrangements; provides such advice and assistance in the areas of intellectual disabilities as the President, the Secretary or the Commissioner may request and prepares and issues reports to the President concerning intellectual disabilities. It works with other Federal, State, local governments, and private-sector organizations to achieve Presidential goals related to intellectual disabilities, and develops and disseminates information to increase public awareness of intellectual disabilities. The staff supporting PCPID reports to the Commissioner of ADD. In coordination with the ACF Office of Public Affairs, the Office of the Commissioner develops a strategy for increasing public awareness of the needs of individuals with developmental disabilities, their families, and programs designed to address them. The Deputy Commissioner assists the Commissioner in carrying out the responsibilities of the Office.
B. The Office of Program Support is responsible for the coordination, oversight, management and evaluation of the State Councils on Developmental Disabilities, the Protection and Advocacy Systems, and the University Centers for Excellence in Developmental Disabilities grant programs as authorized by the Developmental Disabilities Assistance and Bill of Rights Act (DD Act). The Office is responsible for the development of procedures and performance standards that ensure compliance with the DD Act and that improve the outcomes of the programs in increasing the independence, productivity and community inclusion of persons with developmental disabilities as well as program outreach activities. The Office conducts routine and special analyses of state plans of State Councils on Developmental Disabilities, statement of goals and objectives of State Protection and Advocacy Systems, and five-year plans of the University Centers for Excellence in Developmental Disabilities, to assure consistent application of ADD program goals and objectives.
In addition, the Office of Program Support provides program development services, develops and initiates guidelines, policy issuances and actions with team participation by other components of ADD, ACF, HHS and other government agencies to fulfill the mission and goals of the DD Act, as amended. The Office ensures the dissemination of grantee results, including project results and information produced by ADD grantees, by coordinating with the Office of Innovation and the Office of the Commissioner for information sharing.
The Office of Program Support manages cross-cutting initiatives with other components of ADD, ACF, HHS and other government agencies to promote and integrate the grant programs into cross-agency and cross-disability efforts.
C. The Office of Innovation is responsible for the coordination, oversight, management and evaluation of the Projects of National Significance, Family Support, and the Direct Support Workers grant programs as authorized by the Developmental Disabilities Assistance and Bill of Rights Act (DD Act). The Office is responsible for the development of procedures that ensure compliance with the DD Act and that improve the outcomes of the programs, grants and contracts in increasing the independence, productivity and community inclusion of persons with developmental disabilities. The Office also ensures the dissemination of project results and information produced by ADD grantees.
The Office of Innovation also administers two formula grants under the Help America Vote Act (State and Local Grants for Election Assistance for Individuals with Disabilities and Grants to Protection and Advocacy Systems) that improve accessibility for individuals with the full range of disabilities, including the blind and
The Office of Innovation originates and manages cross-cutting research, demonstration and evaluation initiatives with other components of ADD, ACF, HHS and other government agencies. The Office also coordinates information sharing and other activities related to national Developmental Disability program trends with other ACF programs and HHS agencies; and studies, reviews and analyzes other Federal programs providing services applicable to persons with developmental disabilities for the purpose of integrating and coordinating program efforts.
Except as inconsistent with this reorganization, all statements of policy and interpretations with respect to organizational components affected by this notice within the Administration for Children and Families, heretofore issued and in effect on this date of this reorganization are continued in full force and effect.
All delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.
Transfer of organizations and functions affected by this reorganization shall be accompanied in each instance by direct and support funds, positions, personnel, records, equipment, supplies, and other resources.
This reorganization will be effective upon date of signature.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 23, 2011.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB,
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B,Rockville, MD 20850, (301) 796-5156,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 701 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371) and part 7 (21 CFR part 7), subpart C set forth the recall regulations (guidelines) and provide guidance to manufacturers on recall responsibilities. The guidelines apply to all FDA regulated products (
A search of the FDA database was performed to determine the number of recalls, and terminations that took place during fiscal years (FYs) 2008 to 2010. The resulting number of total recalls (9,303) and terminations (2,858) from this database search were then averaged over the 3 years, and the resulting per year average of recalls (3,101) and terminations (953) are used in estimating the current annual reporting burden for this report. FDA estimates the total annual industry burden to collect and provide the previous information to be 443,820 burden hours.
The following is a summary of the estimated annual burden hours for recalling firms (manufacturers, processors, and distributors) to comply with the voluntary reporting requirements of FDA's recall regulations recognizing that there may be a vast difference in the information collection and reporting time involved in different recalls of FDA's regulated products.
The annual reporting burdens are explained as follows:
Request firms develop a recall strategy including provision for public warnings and effectiveness checks. Under this portion of the collection of information, the Agency estimates it will receive 3,101 responses annually based on the average number of recalls over the last 3 FYs.
Request firms voluntarily remove or correct foods and drugs (human or animal), cosmetics, medical devices,
Request that recalling firms provide periodic status reports so FDA can ascertain the progress of the recall. This request only applies to firms with active recalls, and is estimated to be reported every 2 to 4 weeks. This collection of information will generate approximately 27,924 responses annually, based on the average number of recalls over the last 3 FYs (3,101), less the average number of terminations over the last 3 FYs (953), multiplied by the conservative frequency of reporting per year (13).
Provide the firms an opportunity to request in writing that FDA end the recall. The Agency estimates it will receive 953 responses annually based on the average number of terminations over the past 3 FYs.
FDA has no information that would allow it to make a calculated estimate on the hours per response burden to FDA regulated firms to conduct recalls. Variables in the type of products, the quantity and level of distribution, and the various circumstances of recall notifications could cause the hours per response to vary significantly. The best guesstimate of average burden hours per response from previous information collection request reports are utilized again for the current estimates on burden hours per response.
In the
(Comment) One comment noted that the FDA Average Burden per Response (ABPR) are low. The commenter's estimates are double the estimates provided by FDA.
(Response) FDA regulates many different types of products including, but not limited to, medical products, food and feed, cosmetics, and tobacco products. From FYs 2008 to 2010, FDA classified approximately 9,303 recalls of FDA-regulated products. Further, FDA notes that not all recall events reported to the Agency are similar in nature and may entail different information and volume of information on a case-by-case basis. Therefore, FDA could not calculate or determine an estimate for the average burden per response for a particular or specific product type or area and has based its estimates for all industries that it regulates.
(Comment) One comment questioned the validity of the methodology and assumption used by FDA, citing that data ranges are not given. The comment encouraged FDA to provide data ranges for industry to assess better the accuracy of the Agency's estimates.
(Response) As stated in the prior response, FDA regulates many different types of products including, but not limited to, medical products, food and feed, cosmetics, and tobacco products. From FY 2008 to 2010, FDA classified approximately 9,303 recalls of FDA-regulated products. Further, FDA notes that not all recall events reported to the Agency are similar in nature where complexity and size of the recall can dictate the amount of recall information and data to be submitted. Therefore, FDA could not provide ranges of the burden for data collection for industry and based its estimates across the entire scope of recalls of FDA-regulated products.
(Comment) One comment suggests that the Agency develop an electronic tool for recall reporting or “eRecall” tool, and ask, that industry be able to provide input to any developer of user requirements for such a tool before implementations.
(Response) FDA will consider the suggestion of an electronic recall tool for reporting. However, because of the many types of industries that FDA regulates, such a tool may not be able to accommodate the variety of information specific to many of these industries.
(Comment) One comment suggests that recall requirements should apply only to finished goods that are consumable and that FDA's entire recall program, not just information collection, be reviewed to determine if the program serves the purpose originally intended to protect consumers.
(Response) FDA disagrees with the comment. FDA believes that violative products in the marketplace should be recalled from consignees and customers who received them even if they are not finished goods that are consumables. For example, a recall of a violative product which is used for further manufacture and that poses a health risk would also serve as notification to consignees and customers to remove the recalled product from further use or distribution, including providing instructions for additional recall of products that may have been manufactured using the recalled products.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of draft guidance for industry #217 entitled “Evaluating the Effectiveness of Anticoccidial Drugs in Food-Producing Animals.”
The draft guidance, when finalized, is intended to provide guidance to industry for designing and conducting clinical effectiveness studies, and describes criteria that the Center for Veterinary Medicine (CVM) thinks are the most appropriate for the evaluation of the effectiveness of anticoccidial drugs intended for use in poultry and other food-producing animals. The draft guidance also suggests times during the evaluation of effectiveness when sponsors may wish to consult with CVM.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by January 23, 2012.
Submit written requests for single copies of the guidance to the Communications Staff (HFV-12), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Emily R. Smith, Center for Veterinary Medicine (HFV-135), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, (240) 276-8344,
FDA is announcing the availability of draft guidance for industry #217 entitled “Evaluating the Effectiveness of Anticoccidial Drugs In Food-Producing Animals.” The draft guidance discusses general considerations for the evaluation of the efficacy of anticoccidial drugs in poultry, minor species and food-producing mammals. Draft guidance for industry #217 supersedes the CVM draft guidance for industry #40, entitled “Draft Guideline for the Evaluation of The Efficacy of Anticoccidial Drugs and Anticoccidial Drug Combinations in Poultry,” dated April 1992.
This draft guidance discusses general considerations regarding protocol development, study conduct, animal welfare, substantial evidence of effectiveness, feed preparation, drug assays, and combination approvals.
This draft guidance discusses CVM considerations for studies used to substantiate effectiveness of anticoccidial drugs in poultry, including battery studies and commercial field studies. In addition, the draft GFI discusses CVM considerations for studies used to substantiate effectiveness of anticoccidial drugs in food-producing mammals, in minor species, and for minor uses.
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on evaluating the effectiveness of anticoccidial drugs in food-producing animals. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in this guidance have been approved under OMB control nos. 0910-0032 and 0910-0117.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). At least one portion of the meeting will be closed to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Caryn Cohen at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of public workshop; correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Joyce Strong, Office of Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 3208, Silver Spring, MD 20993-0002, (301) 796-9148.
In FR Doc. 2011-28722, appearing on page 68769, in the
On page 68769, in the first column, in the Docket No. heading, “[Docket No. FDA 2011-N-0002]” is corrected to read “[Docket No. FDA-2011-N-0780]”.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The number of nurse practitioners (NP) in the United States has been growing rapidly over the past decade, and continued growth is expected as the annual number of graduates from NP programs is at an all time high. Furthermore, over the past 20 years, financial and regulatory changes have impacted the growth in NPs. The expansion of health insurance under the “Patient Protection and Affordable Care Act” (Pub. L. 111-148) will have an impact on the demand for services. With increasing numbers, NPs are poised to play a critical role in the nation's efforts to expand access to health care services.
Despite the increasing number and roles of NPs, unfortunately, there are currently only limited, inconsistent data available to policy makers and the health care community. Accordingly, it is difficult for these leaders to quantify or fully understand the role of NPs in the current (or future projected course of the) health care system. In fact, it is difficult to estimate with confidence the number of NPs practicing in the U.S. today.
The primary purpose of the Bureau of Health Profession's National Sample Survey of Nurse Practitioners data collection is to: (1) Improve estimates of NPs providing services; (2) describe the settings where NPs are working; (3) identify the positions/roles in which NPs are working; (4) describe the activities and services NPs are providing in the healthcare workforce; (5) determine the specialties in which NPs are working; (6) explore NPs' satisfaction with and perception of the extent to which they are working to their full scope of practice; and (7) assess variations in practice settings, positions, and practice patterns by demographic and educational characteristics.
The statutory provision that authorizes this data collection is section 761(b) of the Public Health Service Act, “National Center for Health Care Workforce Analysis,” which is codified at 42 U.S.C. 294n(b). The information obtained from this survey will ultimately lead to more accurate and complete national estimates of the current NP supply as well as assist in the development of more accurate NP supply and demand projections.
The annual estimate of burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by email to
National Institutes of Health (NIH), PHS, DHHS.
Request for comments
Under the provisions of Section 3507(a) (1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
Recognizing the importance of making this information easily accessible to health care providers, patients, consumers, and others, NIH is developing a voluntary registry of genetic tests. The Genetic Testing Registry (GTR) will provide a centralized, online location for test developers, manufacturers, and researchers to submit detailed information about genetic tests. The overarching goal of the GTR is to advance the public health and research in the genetic basis of health and disease. As such, the Registry will have several key functions, including (1) Encouraging providers of genetic tests to enhance transparency by publicly sharing information about the availability and utility of their tests; (2) providing an information resource for the public, including health care providers, patients, and researchers, to locate laboratories that offer particular tests; and (3) facilitating genetic and genomic data-sharing for research and new scientific discoveries.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentablematerial, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Science and Technology Directorate, DHS.
60-day Notice and request for comment.
The Department of Homeland Security (DHS), Science & Technology (S&T) Directorate invites the general public to comment on data collection forms for the Protected Repository for the Defense of Infrastructure against Cyber Threats (PREDICT) program, and is a revision of a previously approved collection. The PREDICT program facilitates the accessibility of computer and network operational data for use in cyber security research and development through the establishment of distributed repositories of security-relevant network operations data, and the application procedures, protection policies, and review processes necessary to make this data available to the cyber defense research community. The forms allow the PREDICT initiative to provide a central repository, accessible through a Web-based portal (
The DHS invites interested persons to comment on the following form and instructions (hereinafter “Forms Package”) for the S&T PREDICT program. Interested persons may receive a copy of the Forms Package by contacting the DHS S&T PRA Coordinator. This notice and request for comments is required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35).
Comments are encouraged and will be accepted until January 23, 2012.
Interested persons are invited to submit comments, identified by docket number DHS-2011-0098, by
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DHS S&T PRA Coordinator Millie Ives (202) 254-6828. (Not a toll free number.)
The information will be collected via the DHS S&T PREDICT secure Web site at
The Department is committed to improving its information collection and urges all interested parties to suggest how these materials can further reduce burden while seeking necessary information under the Act.
DHS is particularly interested in comments that:
(1) 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;
(2) 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;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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(2)
(3)
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National Protection and Programs Directorate, DHS.
Committee Management; Notice of an Open Federal Advisory Committee Meeting.
The President's National Security Telecommunications Advisory Committee (NSTAC) will meet on Thursday, December 8, 2011. The meeting will be open to the public.
The NSTAC will meet Thursday, December 8, 2011, from 9 a.m. to 1:30 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at the Department of Homeland Security's U.S. Immigration and Customs Enforcement (ICE) facility located at 500 12th Street SW., Washington, DC 20024. For access to the facility, contact Ms. Deirdre Gallop-Anderson at (703) 235-4282 or by email at
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Deirdre Gallop-Anderson as soon as possible.
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the
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A public comment period will be held during the meeting on December 8, 2011, from 1:10 p.m. to 1:25 p.m. Speakers are required to register in advance in order to comment and are requested to limit their comments to three minutes. Speakers will be taken in order of registration, with the understanding that not all registered speakers may be accommodated within the allotted time. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact Ms. Deirdre Gallop-Anderson at (703) 235-4282 or by email at
Allen F. Woodhouse, NSTAC Designated Federal Officer, Department of Homeland Security, telephone (703) 235-4214.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The NSTAC advises the President on matters related to national security and emergency preparedness (NS/EP) telecommunications policy.
During the meeting, NSTAC members will receive feedback from the Department of Homeland Security and the Executive Office of the President regarding ongoing NSTAC recommendations. They will also receive an update from the Cloud Computing Subcommittee, and receive an update on the National Public Safety Broadband Network Subcommittee scoping effort. Additionally, there will be three discussions about Priority Services for Next Generation Networks, a Cyber Code of Conduct and current NS/EP communications issues related to risk management. The NSTAC will discuss options for developing and deploying Next Generation Network Priority Service capabilities to ensure a seamless transition from existing circuit-switched Priority Services as the carriers transition to Internal Protocol platforms. During the session on Cyber Code of Conduct, Federal Government officials and members will discuss the issue of the potential economic impact and policy issues related to botnets and the problems they cause to computer systems, businesses, and consumers. (Botnets are a group of compromised computers that are connected to the Internet and are used for malicious purposes). This discussion will include steps to stop botnets from propagating and to remove or mitigate the malicious software where installed. The last discussion will center around industry's current risk management practices for NS/EP, how to better utilize these practices in Government to assure better response to cyber threats and how improving mechanisms for sharing threat information with industry can improve mitigation of cyber threats.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to update and reissue a Department-wide system of records notice titled, “Department of Homeland Security/ALL—017 General Legal Records System of Records.” This system will assist attorneys in providing legal advice to the Department of Homeland Security on a wide variety of legal issues. As a result of the biennial review of this system, updates have been made to the routine uses within this notice and other administrative non-substantive changes. The subsections of the exemptions have been updated for accuracy and a new Notice of Proposed Rulemaking has been published. Until a new Final Rule is published, the Final Rule published on October 1, 2009 remains active and in place. This system will continue to be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before December 23, 2011. The new system of records will be effective December 23, 2011.
You may submit comments, identified by docket number DHS-2011-0094 by one of the following methods:
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For general questions and privacy issues please contact: Mary Ellen Callahan (703) 235-0780, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to update and reissue a Department-wide system of records notice titled, “DHS/ALL—017 General Legal Records System of Records.” This system will assist attorneys in providing legal advice to DHS on a wide variety of legal issues.
As a result of the biennial review of this system, updates have been made to the routine uses within this notice and other administrative non-substantive changes. It also reflects that in some cases, the records in the system will be classified. The subsections of the exemptions have also been updated for accuracy and a new Notice of Proposed Rulemaking (NPRM) has been published. Until a new Final Rule is published, the Final Rule published on October 1, 2009 remains active and in place. Additions were made to the routine uses to include sharing with federal, state, local, tribal, territorial, foreign, or international agency, regarding individuals who pose or are suspected of posing a risk to transportation or national security; to former employees to respond to government agencies or licensing authorities or for personnel matters; to the Department of Justice, United States Attorney's Office, or other federal agencies to collect debt; to the Department of Transportation for certain purposes; and to third-parties regarding their employees, applicants, contractors, and individuals to whom the third-party issues credentials or clearance to secured areas.
The purpose of this system is to assist DHS attorneys in providing legal advice to DHS personnel on a wide variety of legal issues; to collect the information of any individual who is, or will be, in litigation with the Department, as well as the attorneys representing the plaintiff(s) and defendant(s) response to claims by employees, former employees, and other individuals; to assist in the settlement of claims against the government; to represent DHS during litigation, and to maintain internal statistics. DHS is authorized to implement this program primarily through 5 U.S.C. 301; The Federal Records Act, 44 U.S.C. 3101; The Homeland Security Act of 2002, Public Law 107-296; and The Aviation and Transportation Security Act, Public Law 107-71. This system has an affect on individual privacy that is balanced by the need to collect and maintain information related to legal advice issued. Routine uses contained in this notice include sharing with the Department of Justice (DOJ) for legal advice and representation; to a congressional office at the request of an individual; to the National Archives and Records Administration (NARA) for records management; to contractors in support of their contract assignment to DHS; to agencies, organizations or individuals for the purpose of audit; to agencies, entities, or persons during a security or information compromise or breach; to an agency, organization, or individual when there could potentially be a risk of harm to an individual; to an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order; to a court, magistrate, or administrative tribunal for hearings; to third parties during the course of an investigation; to a federal, state, local, tribal, foreign, or international agency, where such agency has requested information relevant or necessary for the hiring or retention of an individual; to international and foreign governmental entities in accordance with law and formal or informal international agreement; to State Bar Grievance Committees and local Attorney General offices for disbarment or disciplinary proceedings; to unions recognized as exclusive bargaining representatives; To a former employee of HDS, in accordance with applicable regulations; to the DOJ, United States Attorney's Office, or other federal agencies for further collection action on any delinquent debt; and to the news media in the interest of the public. This system will remain in constant review to ensure that if information is collected from the public that the practice is done so in compliance with Paperwork Reduction Act (PRA).
This system will continue to be included in DHS's inventory of record systems.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by
The Privacy Act requires that each agency publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this revised system of records to the Office of Management and Budget and to the Congress.
Department of Homeland Security (DHS)/ALL—017.
DHS/ALL—017 General Legal Records System of Records.
Classified and Unclassified.
Records are maintained at DHS and component locations in Washington, DC and field offices.
Categories of individuals covered by this system include DHS employees and former employees, other federal agency employees and former employees, members of the public, individuals involved in litigation with DHS or involving DHS, individuals who either file administrative complaints with DHS or are the subjects of administrative complaints initiated by DHS, individuals who are named parties in cases in which DHS believes it will or may become involved, matters within the jurisdiction of the Department either as plaintiffs or as defendants in both civil and criminal matters, witnesses, and to the extent not covered by any other system, tort and property claimants who have filed claims against the Government and individuals who are subject of an action requiring approval or action by a DHS official, such as appeals, actions, training, awards, foreign travel, promotions, selections, grievances and delegations, OGC attorneys to whom cases are assigned, and attorneys and authorized representatives for whom DHS has received complaints regarding their practices before DHS and/or the Executive Office for Immigration Review (EOIR).
Categories of records in this system include:
• Names of individuals involved in each legal case;
• Names of witnesses;
• Records relating to litigation by or against the U.S. Government (or litigation in which the U.S. Government is not a party, but has an interest) resulting from questions concerning DHS cases and legal actions that the Department either is involved in or in which it believes it will or may become involved;
• Claims by or against the Government, other than litigation cases, arising from a transaction with DHS, and documents related thereto, including demographic information, vouchers, witness statements, legal decisions, and related material pertaining to such claims;
• Investigation reports;
• Legal authority;
• Legal opinions and memoranda;
• Criminal actions;
• Criminal conviction records;
• Claims and records regarding discrimination, including employment and sex discrimination;
• Claims and records regarding the Rehabilitation Act;
• Claims against non-DHS attorneys and/or representatives who engage in unethical activities or exhibit unprofessional behavior;
• Copies of petitions filed with DHS;
• Personnel matters;
• Contracts;
• Foreclosures;
• Actions against DHS officials;
• Titles to real property;
• Records relating to requests for DHS records other than requests under the Freedom of Information Act and the Privacy Act of 1974;
• Testimonies of DHS employees in federal, state, local, or administrative criminal or civil litigation;
• Documentary evidence;
• Supporting documents including the legal and programmatic issues of the case, correspondence, legal opinions and memoranda and related records;
• State Bar grievance/discipline proceedings records;
• Security Clearance Information
• Records concerning requests for information regarding the use of reproductions of obligations of the United States, including bonds, checks, coins, coupons, currencies (U.S. and foreign), fractional notes, postage stamps (U.S. and foreign), postal money orders, and postmarks;
• Any type of legal document, including but not limited to complaints, summaries, affidavits, litigation reports, motions, subpoenas, and any other court filing or administrative filing or evidence;
• Employee and former employee ethics question forms and responses; and
• Court transcripts.
5 U.S.C. 301; The Federal Records Act, 44 U.S.C. 3101; The Homeland Security Act of 2002, Public Law 107-296; The Aviation and Transportation Security Act, Public Law 107-71.
The purpose of this system is to assist DHS attorneys in providing legal advice to DHS personnel on a wide variety of legal issues; to collect the information of any individual who is, or will be, in litigation with the Department, as well as the attorneys representing the plaintiff(s) and defendant(s) response to claims by employees, former employees, and other individuals; to assist in the settlement of claims against the government; to represent DHS during litigation, and to maintain internal statistics.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (including United States Attorney Offices) or other federal agency or federal executive office conducting litigation or in anticipation of litigation before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. any employee of DHS in his/her official capacity;
3. any employee or former employee of DHS in his/her individual capacity where the Department of Justice or DHS has agreed to represent the employee; or
4. the United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual who relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena from a court of competent jurisdiction.
I. To third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the officer making the disclosure.
J. To a federal, state, local, tribal, foreign, or international agency, where such agency has requested information relevant or necessary for the hiring or retention of an individual, or the issuance of a security clearance, license, contract, grant, or other benefit, or if necessary to obtain information relevant to a DHS decision concerning the hiring or retention of an individual, the issuance of a security clearance, license, contract, grant, or other benefit.
K. To international and foreign governmental entities in accordance with law and formal or informal international agreement.
L. To State Bar Grievance Committees and local Attorney General offices for disbarment or disciplinary proceedings.
M. To unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114, the Merit Systems Protection Board, arbitrators, the Federal Labor Relations Authority, and other parties responsible for the administration of the Federal labor-management program for the purpose of processing any corrective actions, or grievances, or conducting administrative hearings or appeals, or if needed in the performance of other authorized duties.
N. To the appropriate federal, state, local, tribal, territorial, foreign, or international agency, regarding individuals who pose or are suspected of posing a risk to transportation or national security.
O. To a former employee of DHS, in accordance with applicable regulations, for purposes of responding to an official inquiry by a federal, state, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel—related or other official purposes where the Department requires information or consultation assistances from the former employee regarding a matter within that person's former area of responsibility.
P. To the DOJ, United States Attorney's Office, or other federal agencies for further collection action on any delinquent debt when circumstances warrant, as well as to a debt collection agency for the purpose of debt collection.
Q. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
R. To the Department of Transportation and its operating administrations when necessary or relevant to (1) Ensure safety and security in any mode of transportation, (2) enforce DHS regulations or requirements, or (3) the issuance, maintenance, or renewal of a license, certificate, contract, grant, or other benefit.
S. To third parties about individuals who are their employees, job applicants, contractors, or any other individual who is issued credentials or granted clearances by the third party to secured areas when relevant to such employment, application, contract, or issuance of the credential or clearance.
Privacy Act information may be reported to consumer reporting agencies pursuant to 5 U.S.C. 552a(b)(12) collecting on behalf of the United States Government.
Records in this system are stored electronically or on paper in secure facilities behind a locked door. The electronic records are stored on magnetic disc, tape, digital media, CD-ROM, and computer.
Data may be retrieved by individual's name.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
For DHS Headquarters, records are kept for 10 years, in accordance with National Archives and Records Administration General Records Schedule [schedule in process.] For components of DHS, retention may vary. Please contact the component system manager.
The System Managers are the respective General Counsel/Chief Counsel for DHS and each of its components. Their addresses will vary according to each component.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Headquarters' or component's FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Director, Disclosure and FOIA,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Information originates with DHS and its components, court subpoenas, law enforcement agencies, other federal, state, and local courts, state bar licensing agencies, state bar grievance agencies, and inquiries and/or complaints from witnesses or members of the general public.
The Secretary of Homeland Security has exempted this system from subsections (c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (e)(12); (f); (g)(1); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). In addition, the Secretary of Homeland Security has exempted this system from subsections (c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).
Federal Emergency Management Agency, DHS.
Notice of availability.
The Federal Emergency Management Agency (FEMA) is issuing two final guidance documents: Supplement 4 (Supplement 4) to “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants,” NUREG-0654/FEMA-REP-1, Revision 1 (NUREG-0654), and the Radiological Emergency Preparedness Program Manual (the REP Program Manual). Supplement 4 is a joint document issued by FEMA and the Nuclear Regulatory Commission (NRC) that contains the evaluation criteria against which FEMA and the NRC measure the emergency preparedness plans of nuclear power plant owners, operators and the State, local, and Tribal jurisdictions in which they reside. The REP Program Manual is intended to be the principal source of policy and guidance for State, local, and Tribal jurisdictions. Supplement 4 revises and provides additional offsite requirements for emergency preparedness programs at the Nation's nuclear power plants, as well as requirements for backup means for alert and notification and coordination between licensees and offsite responders. The REP Program Manual consolidates many of the REP Program's operative guidance and policy documents into one location, and
Supplement 4 and the REP Program Manual are effective December 23, 2011.
Supplement 4, the REP Program Manual, and the public comment adjudication matrix are available online at
Craig Fiore, Policy, Regulations and Training Section Chief, Radiological Emergency Preparedness Branch, Technological Hazards Division, Protection and National Preparedness, National Preparedness Directorate,
FEMA is issuing Supplement 4 and the REP Program Manual for implementation. These documents conform to changes in the NRC's emergency preparedness regulations, which are also effective December 23, 2011 and published in the
FEMA published a notice of availability for the REP Program Manual and Supplement 4 on May 18, 2009, at 74 FR 23198. The original comment period was scheduled to conclude on August 3, 2009. After the May 18, 2009 publication of the notice of availability, FEMA and the NRC received several comments requesting that the period be extended beyond the original 75-day comment period. These requests suggested a range of more appropriate comment periods, lasting from 150 to 180 days. Various organizations cited the voluminous material put forth by the agencies for comment.
Because the proposed regulatory amendments and guidance documents cover many legal, regulatory, and policy matters that may require a time consuming review by licensees and their offsite counterparts, FEMA and the NRC determined that it was in the interest of all parties to extend the comment period to October 19, 2009. (74 FR 27557, June 10, 2009).
From June 2 through June 23, 2009, FEMA and the NRC jointly hosted a series of public meetings in various cities throughout the country. (74 FR 26418, June 2, 2009).
As part of the domestic licensing of commercial nuclear power plants (NPPs), FEMA and the NRC evaluate emergency preparedness activities at these facilities. Preparedness activities for a radiological incident at an NPP are an essential part of planning and preparing for communities that could be affected by an incident at the facility. FEMA's role is to review and provide findings to the NRC on planning and preparedness activities of State, local, and Tribal governments, licensee emergency response organizations, if applicable, and other supporting organizations (collectively referred to as Offsite Response Organizations or OROs). FEMA performs this activity before the NRC issues a license to operate a NPP, as well as provides ongoing certifications that planning and preparedness efforts are effective and consistent with relevant regulatory guidelines. The NRC evaluates applicants for NPP site permits, construction permits, and operating licenses. As a part of that evaluation, the NRC reviews the licensees' emergency plans and preparedness efforts.
NPP licensees and OROs must show that they have plans in place that provide a reasonable assurance that adequate protective measures will be taken to protect public health and safety in the event of an incident at an NPP. FEMA evaluates the adequacy of the offsite plans and capabilities through the 16 planning standards that are contained in FEMA regulations at 44 CFR 350.5 and NRC regulations at 10 CFR part 50.
The NRC and FEMA have also developed a number of evaluation criteria that the agencies use to determine compliance with each of the 16 planning standards. Those evaluation criteria are contained in NUREG-0654 which is referred to in FEMA's regulations at 44 CFR 350.5, as well as in NRC regulations at 10 CFR part 50.
Supplement 4 provides additional guidance for the development, review, and evaluation of offsite radiological emergency response planning and preparedness surrounding the Nation's commercial NPPs. It addresses four emerging issues: (1) Aligning the offsite REP Program with national preparedness initiatives under Homeland Security Presidential Directives (HSPD) 5 and Presidential Policy Directive (PPD) 8; (2) preparing for and responding to hostile action-based (HAB) incidents at NPPs; (3) enhancing scenario realism and reducing negative training and pre-conditioned responses of exercise participants; and (4) ensuring backup means are in place for alert and notification systems. In addition, Supplement 4 revises and adds evaluation criteria and revises Appendix 3 of NUREG-0654. Although licensees and applicants may consult Supplement 4 for informational purposes, this supplement provides guidance to OROs with respect to preparing offsite plans and conducting exercises in a manner that will be found acceptable to FEMA and the NRC. Any requirements and guidance for licensees and applicants on the issues addressed in Supplement 4 are contained in NRC regulations in 10 CFR part 50 and NRC NSIR/DPR-ISG-01, Interim Staff Guidance, Emergency Planning for Nuclear Power Plants, respectively.
The REP Program Manual provides guidance that interprets the planning standards and evaluation criteria contained in NUREG-0654 and 44 CFR part 350. This guidance provides additional detail to OROs in the vicinity of commercial NPPs on what FEMA expects OROs to include in their radiological emergency response plans. This manual also provides the assessment criteria that FEMA uses to evaluate the ability of the ORO communities to implement radiological emergency response plans. Lastly, this manual provides additional information and guidance to aid FEMA staff and OROs in performing the various functions under the REP Program (
In August 2002, FEMA released an Interim REP Program Manual for use by OROs, nuclear power plant licensees, FEMA Regional staff, the NRC, and other stakeholders in developing plans or assessing planning and preparedness in communities surrounding the Nation's NPPs. In updating the 2002 Interim REP Program Manual, FEMA made important changes to both the language and the substance of the document. First, FEMA conducted a “plain English” review to produce a more easily understandable document by considering the audience's needs and avoiding unnecessary words, jargon, technical terms, and long and ambiguous sentences. Second, the new REP Program Manual provides guidance on the integration of contemporary national preparedness terms and concepts found in the National Incident Management System (NIMS)/Incident Command System (ICS) and the National Exercise Program, Homeland Security Exercise Evaluation Program
The REP Program Manual is divided into four main sections and includes additional appendices. Part I serves as an introduction and overview of the REP Program. It provides the history and establishment of the REP Program, a description of the review process, and the technical basis for the program. This section intends to provide a base knowledge about the program as well as a description of how the current program operates through a synopsis of the program's evolution since its inception.
Part II contains the NUREG-0654 planning standards and evaluation criteria, along with expansive explanations and guidance on materials to be included in ORO plans/procedures. This is a new section of the manual that clarifies but does not exceed the regulation nor does it replace 44 CFR part 350 or NUREG-0654 and is solely meant to provide guidance.
Part III discusses the Homeland Security Exercise and Evaluation Program (HSEEP) process and provides specific guidance unique to the design, development, conduct, evaluation, and improvement planning associated with REP exercise activities. This guidance is intended for use by REP controllers, evaluators, contractors, and any Federal, State, Tribal, or local agencies responsible for planning, preparing, and executing exercises that are used to validate REP Program requirements. This section provides licensee partners with guidelines regarding how the Federal government will coordinate exercise activities in conjunction with the REP Program.
Part IV is comprised of supporting reference documentation, where specific information is found in support of the program. It includes information on potassium iodide and disaster initiated reviews, scenario reviews, plan reviews, the Annual Letter of Certification (ALC), and other topics.
The appendices include acronyms, a glossary, historical REP references (active and retired), plant site identifier numbers and the Target Capabilities List.
The REP Program Manual incorporates and updates previously-issued FEMA Guidance Memoranda (GMs), policy memoranda, and some FEMA-REP series documents. The REP Program Manual effectively retires these documents from use as independent resources. Guidance on specific technical areas and other REP Program documents that FEMA was unable to incorporate have been retained as “technical references.” The remaining stand-alone FEMA-REP series documents and these technical references are listed in Appendix C and cited in the applicable parts of this proposed REP Program Manual. The retired guidance documents are listed in Appendix D as a historical resource. To the greatest extent possible, FEMA will issue all future REP Program guidance as amendments to the applicable parts of the REP Program Manual.
DHS/FEMA issues the new REP Program Manual, and FEMA and the NRC jointly issue Supplement 4 to NUREG-0654 under the authority of: Reorganization Plan No. 3 of 1978; Presidential Directive of Dec. 7, 1979; Executive Order 12148 “Federal Emergency Management”; Section 201 of the Disaster Relief Act of 1974, 42 U.S.C. 5131, as amended by the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. 100-707, 102 Stat. 4689 (1988); Homeland Security Act of 2002, (Pub. L. 107-296) 6 U.S.C. 101
Transportation Security Administration, DHS.
30-day Notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0046, abstracted below to OMB for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by December 23, 2011. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Joanna Johnson, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-3651; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who would respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before December 23, 2011.
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358-2280; or email
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import two captive-born red-crowned cranes (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey.
Notice of Filing of Plats of Survey; Alaska.
The plat and field notes, representing the dependent resurvey of a portion of Lot 3, U.S. Survey No. 11233, situated within Township 13 North, Range 9 East, Copper River Meridian, Alaska.
The plat of survey described above is scheduled to be officially filed in the Alaska State Office, Bureau of Land Management, Anchorage, Alaska, December 23, 2011.
Bureau of Land Management, Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513-7599.
Michael H. Schoder, Chief Cadastral Surveyor, Division of Cadastral Survey, BLM-Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513-7599;
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-(800) 877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The survey plat(s) and field notes will be available for inspection in the Public Information Center, Alaska State Office, Bureau of Land Management, 222 West 7th Avenue, Anchorage, Alaska, 99513-7599; telephone (907) 271-5960. Copies may be obtained from this office for a minimum recovery fee.
If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed.
A person or party who wishes to protest against this survey must file a written response with the Alaska State Director, Bureau of Land Management, stating that they wish to protest.
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.
A statement of reasons for a protest may be filed with the notice of protest to the State Director; the statement of reasons must be filed with the State Director within thirty days after the protest is filed.
43 U.S.C. 3; 53.
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, the U.S. Department of the Interior, Bureau of Land Management (BLM), Pecos District Resource Advisory Council (RAC), will meet as indicated below.
The meeting will be held on January 18, 2012, from 10 a.m.-4:30 p.m. andJanuary 19, 2012, from 8 a.m.-3 p.m.
The meetings will be at the Bureau of Land Management Carlsbad Field Office, 620 E. Greene, Carlsbad, NM, on January 18, with a tour for RAC members of a potash mine on January 19, 2012. The public may send written comments to the RAC, 2909 W. 2nd Street, Roswell, NM 88201.
Betty Hicks, Pecos District, Bureau of Land Management, 2909 W. 2nd Street, Roswell, NM 88201, (575) 627-0242. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-(800) 877-8229 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 10-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in New Mexico. Planned agenda items include: Update on the Carlsbad Resource Management Plan, Potash mining and solution mining, election of officers, and information about the Permian Memorandum of Agreement for cultural resources.
A half-hour public comment period during which the public may address the Council is scheduled to begin at 3:30 p.m. on January 18. All RAC meetings are open to the public. Depending on the number of individuals wishing to comment and time available, the time for individual oral comments may be limited.
U.S. Department of the Interior, National Park Service.
Notice and request for comments.
To comply with the Paperwork Reduction Act of 1995 (PRA), we (the National Park Service) are notifying the public that we have submitted to the Office of Management and Budget (OMB) an information collection request (ICR) for a proposed new collection. This notice provides the public and other Federal agencies an opportunity to comment on the paperwork burden of this collection. To comply with the Paperwork Reduction Act of 1995 and as a part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other federal agencies to comment on this ICR. We may not conduct or sponsor and a person is not required to respond to a collection unless it displays a currently valid OMB control number.
To ensure that your comments on this ICR are considered, please submit them on or before December 23, 2011.
Please submit written comments on this information collection directly to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior via email to OIRA_DOCKET@omb.eop.gov or fax at (202) 395-5806; and identify your submission as 1024-0255. Please also send a copy of your comments to Phadrea Ponds, Information Collections Coordinator, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525 (mail); or phadrea_ponds@nps.gov (email).
Susan Johnson, National Park Service Air Resources Division, U.S. National Park Service, 12795 W. Alameda Parkway, P.O. Box 25287, Denver, Colorado 80225 (mail);
The Clean Air Act (Sections 169A, 169B, and 110(a)(2)(j) charges the NPS with an “affirmative responsibility to protect air quality related values (including visibility).” The NPS, believes that the value of visibility changes should be represented in cost-benefit analyses performed regarding state and federal efforts that may affect visibility (including the Regional Haze Rule, 40 CFR part 51). Updated estimates of visibility benefits are required because the studies conducted in the 1970s and 1980s are not adequate to provide a baseline of current visibility conditions in national parks and wilderness.
The NPS plans to conduct a nationwide stated preference survey to estimate the value of visibility changes in national parks and wilderness areas. Stated preference surveys are carefully designed to elicit respondents' willingness to pay for improvements in environmental quality. A stated preference survey will be required for the general population as many U.S. citizens may be willing to pay to improve or maintain visibility at national parks and wilderness areas, however they may not use these areas. Stated preference surveys are the only methodology available to estimate these non-use values.
Survey development and pre-testing have already been conducted under a previous ICR (OMB Control Number 1024-0255). The purpose of this information collection is to conduct a pilot study to test the survey instrument and implementation procedures prior to the full survey. After the pretest is completed, the NPS will submit a revised Information Collection Request (ICR) to OMB for the full survey.
Comments are invited on: (1) The practical utility of the information being gathered; (2) the accuracy of the burden hour estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden to respondents, including use of automated information techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. While you can ask us in your comment to withhold personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice of Availability for Draft Environmental Impact Statement for Protecting and Restoring Native Ecosystems by Managing Non-Native Ungulates.
The National Park Service (NPS) announces the availability of the Draft Environmental Impact Statement (Draft EIS) for Protecting and Restoring Native Ecosystems by Managing Non-Native Ungulates, Hawaii Volcanoes National Park, Hawaii. The park's current management plan for non-native ungulate control was developed nearly 40 years ago. The new plan will provide a park-wide framework to systematically guide non-native ungulate management activities over the next 15-20 years. The Draft EIS presents five alternatives for managing non-native ungulates in a manner that supports long-term ecosystem protection, supports natural ecosystem recovery and provides desirable conditions for active ecosystem restoration, and supports
All comments must be postmarked or transmitted not later than 60 days following publication by the U.S. Environmental Protection Agency (EPA) of its notice of filing of the Draft EIS. Immediately upon confirmation of this date an announcement will be posted by the NPS on the Project Web site, along with times and locations of three public meetings (December 5 in Volcano, December 6 in Na'alehu, and December 8 in Kailua-Kona). This information will also be announced via press releases and direct mailings to the park's mailing list.
Because the ecosystems of the Hawaiian Islands evolved over millions of years in the absence of large mammalian herbivores, they are extremely vulnerable to the effects of non-native ungulates, which, in the park, include mouflon sheep (mouflon) (
The loss of native species and damage to the ecological integrity of the area also detracts from the natural conditions that contribute to the wilderness character of the park (which currently contains 130,790 acres designated as Wilderness). Cultural resources at the park are also susceptible to impacts from non-native ungulates, including physical effects from trampling, digging, and rooting; alterations in the ecosystem of an area; and loss of native plant and animal communities important to the culture of native peoples.
The Draft EIS identifies and analyzes five alternatives—a no-action alternative (A) and four action alternatives (B, C, D, and E). Under
Electronic copies of the Draft EIS will be available on-line for public review and comment at the Project Web site:
Before including your address, telephone number, electronic mail 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 to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Also, bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted.
National Park Service, Interior.
Notification of Boundary Revision.
Notice is hereby given that, pursuant to 16 U.S.C. 460
National Park Service, Glenna F. Vigil, Chief, Land Resources Program Center, Intermountain Region, P.O. Box 25287, Denver, Colorado 80225-0287, (303) 969-2610.
The effective date of this boundary revision is November 23, 2011.
16 U.S.C. 460
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping investigation No. 731-TA-1185 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of less-than-fair-value imports from The United Arab Emirates of certain steel nails, provided for in subheadings 7317.00.55, 7317.00.65, and 7317.00.75 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigation, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Fred Ruggles (202-205-3187,
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of Graphics Properties Holdings, Inc. on November 17, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain consumer electronics and display devices and products containing same. The complaint names Research In Motion Ltd. of Canada; Research In Motion Corp. of Irving, TX; HTC Corporation of Taiwan; HTC America, Inc. of Bellevue, WA; LG Electronics, Inc. of South Korea; LG Electronics U.S.A., Inc. of Englewood Cliffs, NJ; LG Electronics MobileComm U.S.A. Inc. of San Diego, CA; Apple Inc. of Cupertino, CA; Samsung Electronics Co., Ltd. of South Korea; Samsung Electronics America, Inc. of Ridgefield Park, NJ; Samsung Telecommunications America L.L.C. of Richardson, TX; Sony Corporation of Japan; Sony Corporation of America of New York, NY; Sony Ericsson Mobile of Sweden; and Sony Ericsson Mobile of Research Triangle Park, NC, as respondents.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2858”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation no. 701-TA-477 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigation nos. 731-TA-1180-1181 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized imports from Korea
(1) The cabinet contains at least two interior storage compartments accessible through one or more separate external doors or drawers or a combination thereof;
(2) The upper-most interior storage compartment(s) that is accessible through an external door or drawer is either a refrigerator compartment or convertible compartment, but is not a freezer compartment; and
(3) There is at least one freezer or convertible compartment that is mounted below the upper-most interior storage compartment(s).
For purposes of these investigations, a refrigerator compartment is capable of storing food at temperatures above 32 degrees F (0 degrees C), a freezer compartment is capable of storing food at temperatures at or below 32 degrees F (0 degrees C), and a convertible compartment is capable of operating as either a refrigerator compartment or a freezer compartment, as defined above.
Also covered are certain assemblies used in bottom mount combination refrigerator-freezers, namely: (1) Any assembled cabinets designed for use in bottom mount combination refrigerator-freezers that incorporate, at a minimum: (a) an external metal shell, (b) a back panel, (c) a deck, (d) an interior plastic liner, (e) wiring, and (f) insulation; (2) any assembled external doors designed for use in bottom mount combination refrigerator-freezers that incorporate, at a minimum: (a) An external metal shell, (b) an interior plastic liner, and (c) insulation; and (3) any assembled external drawers designed for use in bottom mount combination refrigerator-freezers that incorporate, at a minimum: (a) An external metal shell, (b) an interior plastic liner, and (c) insulation.
The products subject to these investigations are currently classifiable under subheadings 8418.10.0010, 8418.10.0020, 8418.10.0030, and 8418.10.0040 of the Harmonized Tariff System of the United States (HTSUS). Products subject to these petitions may also enter under HTSUS subheadings 8418.21.0010, 8418.21.0020, 8418.21.0030, 8418.21.0090, and 8418.99.4000, 8418.99.8050, and 8418.99.8060. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Christopher Cassise (202) 708-5408, Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation No. 701-TA-478 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigation No. 731-TA-1182 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized and less-than-fair-value imports from China of certain steel wheels, provided for in subheading 8708.70 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Mary Messer (202) 205-3193, Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S.
The complainant requests that the Commission institute an investigation and, after the investigation, issue exclusion orders and cease and desist orders.
The complaint, except for any confidential information contained therein, is 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., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2011).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on November 17, 2011, Ordered that—
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain automotive GPS navigation systems, components thereof, and products containing same that infringe one or more of claims 1-4, 7-9, and 15 of the '180 patent; claims 1-4, 18-21, and 25-31 of the '380 patent; claims 1-3, 5, 10-12, and 17-21 of the '111 patent; and claims 1 and 3 of the '511 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors, 19 U.S.C. 1337(d)(1), (f)(1),(g)(1), and shall not include the other issues raised by certain of the respondents in their responses to the Commission's Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest (76 FR 66750);
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Beacon Navigation GmbH, c/o Acton Treuhand AG, Innere Güterstrasse 4, 6304 Zug, Switzerland.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
December 2, 2011 at 11 a.m.
Room 100, 500 E Street SW.,Washington, DC 20436,
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701-TA-481 and 731-TA-1190 (Preliminary) (Crystalline Silicon Photovoltaic Cells and Modules from China). The Commission is currently scheduled to transmit its determinations to the Secretary of Commerce on or before December 5, 2011; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before December 12, 2011.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Notice is hereby given that on November 10, 2011, a proposed Consent Decree (“Decree”) in
In this action the United States alleged that Defendant the California Department of Transportation (“Caltrans”) is in violation of a 1938 permit that authorized construction of Highway 1 (also known as Park Presidio Boulevard) across a portion of the Presidio of San Francisco, because run-off from the highway has contaminated Mountain Lake sediment with lead, copper, zinc and other substances, and drainage facilities for which Caltrans is responsible are degraded and in need of repair or replacement. The Decree resolves these claims and requires Caltrans to pay $5.5 million toward the remediation of Mountain Lake sediment contamination, to pay $4 million for repair or replacement of the overflow pipeline that drains Mountain Lake, and to pay $500,000 toward certain legal costs in pursuing this action. In addition, the Decree requires Caltrans to reconfigure Highway 1 drainage facilities to avoid further discharges of highway run-off to Mountain Lake.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Decree may also be examined on the following Department of Justice Web site:
Occupational Safety and Health Administration (OSHA), Labor.
Request for nominations of members to serve on ACCSH.
OSHA invites interested persons to submit nominations for membership on ACCSH.
Nominations for ACCSH must be submitted (postmarked, sent, transmitted, or received) by January 23, 2012.
You may submit nominations and supporting materials by one of the following methods:
OSHA will post submissions in response to this
The Assistant Secretary of Labor for Occupational Safety and Health invites interested persons to submit nominations for membership on ACCSH.
ACCSH operates in accordance with the CSA, the OSH Act, the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), and regulations issued pursuant to those statutes (29 CFR parts 1911 and 1912, 41 CFR part 102-3). ACCSH generally meets two to four times a year.
The categories of ACCSH membership, the total number of members in each category, and the number of new members to be appointed in each category, are:
• Five members who are qualified by experience and affiliation to present the viewpoint of employers in the construction industry: three new employer representatives will be appointed;
• Five members who are similarly qualified to present the viewpoint of employees in the construction industry: three new employee representatives will be appointed;
• Two representatives of State safety and health agencies: one new representative will be appointed;
• Two public members, qualified by knowledge and experience to make a useful contribution to the work of ACCSH, such as those who have professional or technical experience and competence with occupational safety and health in the construction industry: one new public representative will be appointed; and
• One representative designated by the Department of Health and Human Services and appointed by the Secretary: no new appointment will be made in this category.
ACCSH members normally serve staggered two-year terms, unless they resign, cease to be qualified, become unable to serve, or are removed by the Secretary (29 CFR 1912.3(e)). At the discretion of the Secretary, a qualified ACCSH member whose term has expired may continue to serve until a successor is appointed (29 CFR 1912.3(i)). The Secretary may appoint ACCSH members to successive terms. No member of ACCSH, other than members who represent employers or employees, shall have an economic interest in any proposed rule that affects the construction industry (29 CFR 1912.6).
The Department of Labor is committed to equal opportunity in the workplace and seeks broad-based and diverse ACCSH membership. Any interested person or organizations may nominate one or more individuals for membership on ACCSH. Interested persons also are invited and encouraged to submit statements in support of particular nominees.
(1) Nominee's contact information and current employment or position;
(2) Nominee's resume or curriculum vitae, including prior membership on ACCSH and other relevant organizations and associations;
(3) Categories of membership (employer, employee, public, State safety and health agency) that the nominee is qualified to represent;
(4) A summary of the background, experience, and qualifications that addresses the nominee's suitability for the nominated membership category;
(5) Articles or other documents the nominee has authored that indicate the nominee's knowledge, experience, and expertise in occupational safety and health, particularly as it pertains to the construction industry; and
(6) A statement that the nominee is aware of the nomination, is willing to regularly attend and participate in ACCSH meetings, and has no conflicts of interest that would preclude membership on ACCSH.
Because of security-related procedures, materials submitted by mail may experience significant delays. For information about security procedures concerning the delivery of materials by hand, express delivery, and messenger or courier service, please contact the OSHA Docket Office.
OSHA will post all submissions, including personal information provided, in the docket without change; therefore, OSHA cautions interested parties about submitting personal information such as Social Security numbers and birthdates. Guidance on submitting nominations and supporting materials is available on-line at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by Section 7 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656), Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704), the Federal Advisory Committee Act (5 U.S.C. App. 2), 29 CFR part 1912, 41 CFR part 102-3, and Secretary of Labor's Order No. 4-2010 (75 FR 55335).
Office of Federal Financial Management, Office of Management and Budget.
Notice; request for comments.
In accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be received by December 23, 2011. Due to potential delays in OMB's receipt and processing of mail sent through the US Postal Service, we encourage respondents to submit comments electronically to ensure timely receipt. We cannot guarantee that comments mailed will be received before the comment closing date.
Comments may be sent through regulations.gov, a Federal E-Government Web site that allows the public to find, review, and submit comments on documents that agencies have published in the
Marguerite Pridgen, Office of Federal Financial Management, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503; telephone (202) 395-7844; fax (202) 395-3952; email
Marguerite Pridgen at the addresses noted above.
In the Paperwork Reduction Act notice published on July 28, 2011 [76 FR 45299], OMB requested comments on the Standard Form (SF) 425, Federal Financial Report and Standard Form (SF) 425A, Federal Financial Report Attachment (collectively known as “the FFR”). We received comments from an individual and five organizations. In response to those comments, we made changes to the FFR and FFR instructions. The proposed revised forms are posted at
Following is a summary of the comments we received and our responses.
Recent findings in Federal audits of recipient cash management policies and procedures identified issues concerning the methods that recipients used to compute the amount of interest earned on Federal Cash on Hand. Auditors found that some recipients subtracted the aggregated amount of disbursements they had made under all of their Federal awards from the aggregated amount of payments they had received from the Government under those awards to compute the amount of Cash on Hand from all payments, which then became the basis for computing the amount of interest to be remitted. Recipients included in the computation awards paid by the reimbursement method, as well as awards paid by the advance method for which disbursements at the time of the computation exceeded the amount of the advances they had requested and received from the Government. For reimbursement method awards, the recipients had used their own funds to cover cash needs, pending receipt of future payments of Federal funds. The calculated balances of Federal Cash on Hand for those awards were negative, which offset positive balances for other Federal awards and reduced the computed amount of Federal Cash on Hand for all Federal awards in the aggregate. It therefore also reduced the computed amount of interest to be remitted to the Government. In light of these matters, and the commenter's recommendations, we have added and instruction to line 10c “Cash on Hand” to read as follows:
“Use of Aggregated Amounts of Disbursements and Advances. A recipient must compute the amount of Federal Cash on Hand due to undisbursed advance payments using the same basis that it uses in requesting the advances. Therefore, in doing the computation, a recipient may only aggregate the amounts of its advance payments received and disbursements of Federal funds under multiple awards only if it is authorized to aggregate its requests for advance payments in the same manner. The following examples should help to illustrate what is permissible:
• If a recipient is authorized to consolidate its requests for advance payment for a group of awards—i.e., it requests a single amount to cover its anticipated cash needs for the awards in the aggregate, then it may similarly compute the Cash on Hand by subtracting the aggregated amount of disbursements from the aggregated amount of the advances received for those awards.
• If the same recipient is required to request payment individually for other Federal awards, it must compute the Cash on Hand for each of those awards on an award by award basis and correspondingly report these awards on separate FFRs.
Exclusion of Negative Balances of Cash on Hand. In computing the total amount of Cash on Hand for its Federal awards in the aggregate, a recipient must exclude any negative balance of Federal Cash on Hand for an individual award or for a group of awards paid through a consolidated payment request. This includes each award paid by the reimbursement method and any award using the advance method that has disbursements in excess of advances received to date. The computation must include only positive balances of cash on hand.”
On the form itself, we added the word “combined” to the instruction line 10 “Transactions” which now reads “(
Once the revised FFR is approved by OMB, agencies shall adopt it for use on their grants and cooperative agreements, and where appropriate, on other assistance agreements. Agencies that use customized (non-standard) forms to collect financial data from their recipients should discuss the need to continue use of the customized forms with OMB's Office of Federal Financial Management prior to seeking clearance or renewal from OMB's Office of Information and Regulatory Affairs.
Needs and Uses: The SF-425 is used to collect financial information for recipients of grants and cooperative agreements and related transactions under nonconstruction grant programs.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to request extension of a currently approved information collection used to permit the public and other Federal agencies to use its official seal(s) and/or logo(s). The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before January 23, 2012 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (ISP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd., College Park, MD 20740-6001; or faxed to (301) 713-7409; or electronically mailed to
Requests for additional information or copies of the proposed information collections and supporting statements should be directed to Tamee Fechhelm at telephone number (301) 837-1694, or fax number (301) 713-7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed collection information is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collections; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology; and (e) whether small businesses are affected by this collection. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
National Science Foundation (NSF).
Notice.
NSF is hereby granting a limited program-specific exemption of section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111-5, 123 Stat. 115, 303 (2009), for incidental items that comprise, in total, an amount that is no more than 5 percent of the total cost of the iron, steel, and manufactured goods used in and incorporated into a project funded through the Academic Research Infrastructure Recovery and Reinvestment Program.
November 23, 2011.
National Science Foundation, 4201 Wilson Blvd., Arlington, Virginia 22230.
Ms. Kathleen Clark Baukin, Division of Grants and Agreements, (703) 292-8210.
In accordance with section 1605(c) of the Recovery Act and section 176.80 of Title 2 of the Code of Federal Regulations, the National Science Foundation (NSF) hereby provides notice that on July 20, 2011, the NSF Chief Financial Officer, in accordance with a delegation order from the Director of the agency on 27 May 2010, granted a de minimis exemption of section 1605 of the Recovery Act (Buy American provision) with respect to incidental items that comprise, in total, an amount that is no more than 5 percent of the total cost of the iron, steel, and manufactured goods used in and incorporated into a project funded through the Academic Research Infrastructure—Recovery and Reinvestment Program. The basis for this exemption is section 1605(b)(1) of the Recovery Act, in that executing individual exemptions for many of the incidental items used in construction and renovation, such as nuts, bolts, wires, cables, switches,
The Recovery Act appropriated $200 million to NSF for projects being funded by the Foundations Academic Research Infrastructure—Recovery and Reinvestment Program (ARI). This Program funds renovation of infrastructure for research at academic institutions and non-profit research organizations.
Section 1605(a) of the Recovery Act, the Buy American provision, states that none of the funds appropriated by the Act “may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.”
Subsections 1605(b) and (c) of the Recovery Act authorize the head of a Federal department or agency to waive the Buy American provision if the head of the agency finds that: (1) Applying the provision would be inconsistent with the public interest; (2) the relevant goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the inclusion of the goods produced in the United States will increase the cost of the project by more than 25 percent. If the head of the Federal department or agency waives the Buy American provision, then the head of the department or agency is required to publish a detailed justification in the
Recovery Act projects funded by the Academic Research Infrastructure—Recovery and Reinvestment Program (ARI) typically involve the use of literally thousands of miscellaneous, generally low-cost items that are essential for, but incidental to, the construction, alteration, maintenance or repair of a public building or public work and are incorporated into the physical structure of the project, such as nuts, bolts, wires, cables, and switches. For many of these incidental items, the country of manufacture and the availability of alternatives are not always readily or reasonably identifiable in the normal course of business. More importantly, the miscellaneous character of these items, together with their low cost (both individually and when procured in bulk), characterize them as incidental to the project.
Requiring individual waivers for incidental items would be time prohibitive and overly burdensome for both awardees and for the National Science Foundation (NSF) in carrying out the Recovery Act. Therefore, a nationwide limited de minimis waiver of incidental items up to a limit of no more than 5 percent of the total cost of the iron, steel, and manufactured goods used in and incorporated into a project is justified in the public interest.
Issuance of this limited project-specific exemption recognizes NSF's commitment to expeditious expenditure of Recovery Act dollars, by balancing the need for expeditious and efficient implementation of the Recovery Act while still applying the Buy American provisions for materials that are greater than a de minimis part of the projects.
With a similar purpose, on July 26, 2011, NSF published a de minimis exemption from the Buy American requirement for incidental items in a ship construction project [76 FR 44613].
On July, 20, 2011, and under the authority of section 1605(b)(1) of the Public Law 111n5 and delegation order dated 27 May 2010, with respect to the Academic Research Infrastructure—Recovery and Reinvestment Program awards funded by NSF, the NSF Chief Financial Officer granted a limited exemption (a waiver under the Recovery Act Buy American provisions) for incidental items that comprise, in total, a de minimis amount of the project; that is, any such incidental items up to a limit of no more than 5 percent of the total cost of the iron, steel, and manufactured goods used in and incorporated into a project that is funded under the Academic Research Infrastructure—Recovery and Reinvestment Program.
Other Federal agencies have issued similar de minimis exemptions. For example, the Department of Energy issued a de minimis exemption relating to its Office of Energy Efficiency and Renewable Energy [75 FR 35447 (June 22, 2010)].
The National Science Board's Committee on Programs and Plans (CPP) Task Force on Unsolicited Mid-Scale Research (MS), pursuant to NSF regulations (45 CFR Part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a teleconference for the transaction of National Science Board business and other matters specified, as follows:
November 29, 2011; 4 p.m.-5 p.m. EST.
(1) Discussion of the proposed revision to the Task Force on Unsolicited Mid-Scale Research (MS) Task Force Charge timeline; (2) Discussion of the revised MS Task Force report outline; (3) Discussion of NSF mid-scale award data analysis.
Open.
This meeting will be held by teleconference at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public listening room will be available for this teleconference meeting. All visitors must contact the Board Office [call (703) 292-7000 or send an email message to
Please refer to the National Science Board Web site
The National Science Board's Task Force on Merit Review, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a meeting for the transaction of National Science Board business, as follows:
Monday, November 28, 2011, from 1 to 2 p.m., EST.
Discussion of the draft Merit Review Criteria report.
Open.
This meeting will be held by teleconference originating at the National Science Board Office, National Science Foundation, 4201Wilson Blvd., Arlington, VA 22230. A room will be available for the public and NSF staff to listen-in on this teleconference meeting. All visitors must contact the Board Office at least
Please refer to the National Science Board Web site (
National Science Foundation.
Notice of Permit Applications Received under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at title 45 part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by December 23, 2011. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Polly A. Penhale at the above address or (703) 292-7420.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applications received are as follows:
Permit Application: 2012-011.
Daniel P. Costa, Department of Ecology and Evolutionary Biology, University of California—Santa Cruz, Long Marine Lab, 100 Shaffer Road, Santa Cruz, CA 95060.
Take and Enter Antarctic Specially Protected Areas. The applicant plans to enter the Antarctic Specially Protected Areas of Cape Evans (ASPA 155), Backdoor Bay (ASPA 157), and Hut Point (ASPA 158) to collect 1 cm
Cape Evans (ASPA 155), Backdoor Bay (ASPA 157), and Hut Point (ASPA 158).
December 1, 2011 to December 31, 2012.
The ACRS Subcommittee on Materials, Metallurgy & Reactor Fuels will hold a meeting on December 15, 2011, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the proposed rule for 50.46c, “Emergency Core Cooling System Performance During Loss-of-Coolant Accidents.” The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone (301) 415-7111 or
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone (240) 888-9835) to be escorted to the meeting room.
Office of Personnel Management.
Establishment of advisory committee.
The CFC-50 Advisory Commission will hold its second meeting on December 6, 2011, at the time and location shown below. The Commission shall advise the Director of the U.S. Office of Personnel Management (OPM) on strengthening the integrity, the operation and effectiveness of the Combined Federal Campaign (CFC) to ensure its continued growth and success. The Commission is an advisory committee composed of Federal employees, private campaign administrators, charitable organizations and “watchdog” groups. The Commission is co-chaired by Thomas Davis and Beverly Byron.
The meeting is open to the public. Please contact the Office of Personnel Management at the address shown below if you wish to present material to the Commission at the meeting. The manner and time prescribed for presentations may be limited, depending upon the number of parties that express interest in presenting information.
December 6, 2011 at 2 p.m.
Location: U.S. Office of Personnel Management, Theodore Roosevelt Executive Conference Room, 5th Floor, Theodore Roosevelt Building, 1900 E St. NW., Washington, DC 20415.
Keith Willingham, Director, Combined Federal Campaign, U.S. Office of Personnel Management, 1900 E St. NW., Suite 6484, Washington, DC 20415. Phone (202) 606-2564 FAX (202) 606-5056 or email at
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to enter into an additional bilateral agreement with HongKong Post Group. This document invites public comments on the request and addresses several related procedural steps.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
On November 14, 2011, the Postal Service filed a notice, pursuant to 39 CFR 3010.40
In support of its Notice, the Postal Service filed two attachments as follows: Attachment 1—an application for non-public treatment of materials to maintain redacted portions of the agreement and supporting documents under seal and Attachment 2—a redacted copy of the HongKong Post 2012 Agreement. The Postal Service also provided a redacted version of the supporting financial documentation as a separate Excel file.
In Order No. 549, the Commission approved the Inbound Market Dominant Multi-Service Agreements with Foreign Postal Operators 1 product and the Strategic Bilateral Agreement between United States Postal Service and Koninklijke TNT Post BV and TNT Post Pakketservice Benelux BV (TNT Agreement) and the China Post Group-United States Postal Service Letter Post Bilateral Agreement (CPG Agreement). In Order No. 700, the Commission approved the functionally equivalent HongKong Post Agreement (HongKong Post Agreement).
The Postal Service asserts that the Agreement should not cause unreasonable harm in the marketplace since it is unaware of any significant competition in this market.
Under 39 CFR 3010.43, the Postal Service is required to submit a data collection plan. The Postal Service indicates that it intends to report information on this Agreement through its Annual Compliance Report. While indicating its willingness to provide information on mailflows within the annual compliance review process, the Postal Service proposes that no special data collection plan be established for this Agreement. With respect to performance measurement, it requests that the Commission exempt the HongKong Post 2012 Agreement from separate reporting requirements under 39 CFR 3055.3(a)(3) as determined in Order Nos. 549, 700, and 871 for the Agreements in Docket Nos. R2010-5 and R2010-6, R2011-4, and R2011-7, respectively.
The Postal Service advances reasons why the instant Agreement is functionally equivalent to the previously filed CPG Agreement, TNT Agreement, HongKong Post Agreement and China Post 2011 Agreement. It contends that it contains the same attributes and methodology and fits within the Mail Classification Schedule language for the Inbound Multi-Service Agreements with the Foreign Postal Operators 1 product.
The Postal Service identifies specific terms that distinguish the instant Agreement from the three existing agreements. These distinctions include clarifying legal requirements, revised rates, term, signatory, and other changes.
In its Notice, the Postal Service maintains that certain portions of the Agreement, prices, and related financial information should remain under seal.
The Postal Service concludes that the HongKong Post 2012 Agreement should be added as a functionally equivalent agreement under the Inbound Market Dominant Multi-Service Agreements with Foreign Postal Operators 1 product.
Interested persons may submit comments on whether the Postal Service's filing in the captioned docket is consistent with the policies of 39 U.S.C. 3622 and 39 CFR part 3010.40. Comments are due no later than November 30, 2011. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in this docket.
1. The Commission establishes Docket No. R2012-4 to consider matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments by interested persons in this proceeding are due no later than November 30, 2011.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Waverly, Washington post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
November 18, 2011: Administrative record due (from Postal Service);
December 12, 2011, 4:30 p.m., Eastern Time: Deadline for notices to intervene.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on November 3, 2011, the Commission received a petition for review of the Postal Service's determination to close the Waverly post office in Waverly, Washington. The petition for review was filed by Evelyn Heinevetter (Petitioner) and is postmarked October 26, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-49 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than December 8, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 18, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 18, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 18, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Brent W. Peckham is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order and Procedural Schedule in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Elmo, Missouri post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
November 17, 2011: Administrative record due (from Postal Service);
December 12, 2011, 4:30 p.m., Eastern Time: Deadline for notices to intervene.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on November 2, 2011, the Commission received a petition for review of the Postal Service's determination to close the Elmo post office in Elmo, Missouri. The petition for review was filed by Joyce Ecker (Petitioner) and is postmarked October 27, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-48 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than December 7, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 17, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 17, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 17, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Getachew Mekonnen is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order and Procedural Schedule in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Scottville, Illinois post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
November 15, 2011: Administrative record due (from Postal Service);December 12, 2011, 4:30 p.m., Eastern Time: Deadline for notices to intervene.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on October 31, 2011, the Commission received a petition for review of the Postal Service's determination to close the Scottville post office in Scottville, Illinois. The petition for review was filed by Mark Keeney, Mayor (Petitioner) and is postmarked October 26, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-47 to consider Petitioner's appeal. If Petitioner would like to further explain his position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than December 5, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 15, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 15, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 15, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Derrick Dennis is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order and Procedural Schedule in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Morgan City, Mississippi post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), the Commission received two petitions for review of the Postal Service's determination to close the Morgan City post office in Morgan City, Mississippi. The first petition for review received October 31, 2011, was filed by Wayne E. Walker. The second petition for review received November 4, 2011, was filed by Martha Mullen, Mayor. The earliest postmark date is October 25, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-46 to consider Petitioners' appeal. If Petitioners would like to further explain their position with supplemental information or facts, Petitioners may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than December 5, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 15, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 15, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 15, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, James Callow is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order and Procedural Schedule in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Pace, Mississippi post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
November 18, 2011: Administrative record due (from Postal Service); December 12, 2011, 4:30 p.m., Eastern Time: Deadline for notices to intervene.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), the Commission received two petitions for review of the Postal Service's determination to close the Pace post office in Pace, Mississippi. The first petition for review received November 3, 2011, was filed by Robert LeFlore, Sr., Mayor. The second petition for review received November 7, 2011, was filed by Curtissia W. Allen. The earliest postmark date is October 18, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-50 to consider Petitioners' appeal. If Petitioners would like to further explain their position with supplemental information or facts, Petitioners may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than December 8, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 18, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 18, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 18, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Natalie Ward is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order and Procedural Schedule in the
By the Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation G (17 CFR 244.100-244.102) under the Securities Exchange Act of 1934 (the “Exchange Act”) (15 U.S.C. 78a
Written comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312; or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995
Rule 17Ac2-1, pursuant to Section 17A(c) of the Exchange Act, generally requires transfer agents to register with their Appropriate Regulatory Agency (“ARA”), whether the Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the Office of Thrift Supervision, and to amend their registrations if the information becomes inaccurate, misleading, or incomplete.
Paragraph 1 of Rule 17Ac2-1, requires transfer agents to file a Form TA-1 application for registration with the Commission where the Commission is their ARA. Transfer agents must also file an amended Form TA-1 application for registration if the existing Form TA-1 becomes inaccurate, misleading, or incomplete. The Form TA-1s must be filed with the Commission electronically, absent an exemption, on EDGAR pursuant to Regulation S-T (17 CFR part 232).
The Commission receives on an annual basis approximately 190 applications for registration on Form TA-1 from transfer agents required to register with the Commission. Included in this figure are amendments to Form TA-1 as required by Paragraph (c) of Rule 17Ac2-1 to address information that has become inaccurate, misleading, or incomplete. Based on past submissions, the staff estimates that the average number of hours necessary to comply with the requirements of Rule 17Ac2-1 and Form TA-1 is one and one-half hours with a total burden of 285 hours per year.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number. Please direct your written comments to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312 or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• Rule 12d2-1 (17 CFR 240.12d2-1) Suspension of Trading.
On February 12, 1935, the Commission adopted Rule 12d2-1,
Any such suspension may be continued until such time as the Commission may determine that the suspension is designed to evade the provisions of Section 12(d) of the Act and Rule 12d2-2 thereunder.
The trading suspension notices serve a number of purposes. First, they inform the Commission that an exchange has suspended from trading a listed security or reintroduced trading in a previously suspended security. They also provide the Commission with information necessary for it to determine that the suspension has been accomplished in accordance with the rules of the exchange, and to verify that the exchange has not evaded the requirements of Section 12(d) of the Act and Rule 12d2-2 thereunder by improperly employing a trading suspension. Without Rule 12d2-1, the Commission would be unable to fully implement these statutory responsibilities.
There are 15 national securities exchanges that are subject to Rule 12d2-1. The burden of complying with Rule 12d2-1 is not evenly distributed among the exchanges, however, since there are many more securities listed on the New York Stock Exchange, Inc., the NASDAQ Stock Market, and the American Stock Exchange LLC than on the other exchanges.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Comments should be directed to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312 or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 9b-1 (17 CFR 240.9b-1) sets forth the categories of information required to be disclosed in an options disclosure document (“ODD”) and requires the options markets to file an ODD with the Commission 60 days prior to the date it is distributed to investors. In addition, Rule 9b-1 provides that the ODD must be amended if the information in the document becomes materially inaccurate or incomplete and that amendments must be filed with the Commission 30 days prior to the distribution to customers. Finally, Rule 9b-1 requires a broker-dealer to furnish to each customer an ODD and any amendments, prior to accepting an order to purchase or sell an option on behalf of that customer.
There are 9 options markets that must comply with Rule 9b-1. These respondents work together to prepare a single ODD covering options traded on each market, as well as amendments to the ODD. These respondents file approximately 3 amendments per year. The staff calculates that the preparation and filing of amendments should take no more than eight hours per options market. Thus, the total compliance burden for options markets per year is 216 hours (9 options markets × 8 hours per amendment × 3 amendments). The estimated cost for an in-house attorney is $354 per hour,
In addition, approximately 1,500 broker-dealers must comply with Rule 9b-1. Each of these respondents will process an average of 3 new customers for options each week and, therefore, will have to furnish approximately 156 ODDs per year. The postal mailing or electronic delivery of the ODD takes respondents no more than 30 seconds to complete for an annual compliance burden for each of these respondents of 78 minutes or 1.3 hours. Thus, the total compliance burden per year is 1,950 hours (1,500 broker-dealers × 1.3 hours). The estimated cost for a general clerk of a broker-dealer is $50 per hour,
The total compliance burden for all respondents under this rule (both options markets and broker-dealers) is 2,166 hours per year (216 + 1,950), and the total compliance cost is $173,964 ($76,464 + $97,500).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Comments should be directed to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312 or send an email to:
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements without shareholder approval.
Bandon Capital Management, LLC (“Bandon Capital” or the “Adviser”) and Northern Lights Fund Trust (the “Trust”).
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on December 12, 2011, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: Bandon Capital, 317 SW. Alder Street, Suite 1110, Portland, OR 97204; Trust: 4020 South 147th Street, Omaha, NE 68137.
Steven I. Amchan, Senior Counsel, at (202) 551-6826, or Jennifer L. Sawin, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Trust, a Delaware statutory trust, is registered under the Act as an open-end management investment company and as of November 9, 2011 was comprised of 123 individual registered series, including the Bandon Isolated Alpha Fixed Income Fund (the “Bandon Fund”), and 10 additional series that are in registration. The Bandon Fund currently employs two unaffiliated investment subadvisers (each, a “Subadviser”).
2. Under the terms of the Bandon Fund's Advisory Agreement, the Adviser is responsible for the overall management of the Bandon Fund's business affairs and selecting investments according to the Bandon Fund's investment objectives, policies and restrictions. For the investment management services that it provides to the Bandon Fund, the Adviser receives the fee specified in the Advisory Agreement. The Advisory Agreement also permits the Adviser to retain one or more subadvisers for the purpose of managing the investments of all or a portion of the assets of the Bandon Fund. Pursuant to this authority, the Adviser has entered into investment subadvisory agreements with two Subadvisers to provide investment advisory services to the Bandon Fund (such agreements with Subadvisers, “Subadvisory Agreements”). Each of these two Subadvisers is, and each future Subadviser will be, registered as an investment adviser under the Advisers Act. The Adviser will supervise, evaluate and allocate assets to the Subadvisers, and make recommendations to the Board about their hiring, retention or release, at all times subject to the authority of the Board. The Adviser will compensate each Subadviser out of the fees paid to the Adviser under the Advisory Agreement.
3. Applicants request an order to permit the Adviser, subject to Board approval, to enter into and materially amend Subadvisory Agreements without obtaining shareholder approval. The requested relief will not extend to any subadviser that is an affiliated person, as defined in section 2(a)(3) of the Act, of the Trust, a Fund or the Adviser, other than by reason of serving as a subadviser to one or more of the Funds (“Affiliated Subadviser”).
1. Section 15(a) of the Act provides, in relevant part, that it is unlawful for any person to act as an investment adviser to a registered investment company except pursuant to a written contract that has been approved by the vote of a majority of the company's outstanding voting securities. Rule 18f-2 under the Act provides that each series or class of securities in a series investment company affected by a matter must approve that matter if the Act requires shareholder approval.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that the requested relief meets this standard.
3. Applicants assert that the shareholders expect the Adviser and the Board to select the Subadvisers for the Funds that are best suited to achieve each Fund's investment objective. Applicants assert that, from the perspective of the investor, the role of the Subadvisers is substantially equivalent to that of the individual portfolio managers employed by the Adviser. Applicants state that requiring shareholder approval of each Subadvisory Agreement would impose costs and unnecessary delays on the Funds, and may preclude the Adviser from acting promptly in a manner considered advisable by the Board. Applicants note that the Advisory Agreements and any Subadvisory Agreement with an Affiliated Subadviser will remain subject to section 15(a) of the Act and rule 18f-2 under the Act.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Fund may rely on the requested order, the operation of the Fund in the manner described in the application will be approved by a majority of the Fund's outstanding voting securities, as defined in the Act, or in the case of a Fund whose public shareholders purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the initial shareholder(s) before offering shares of that Fund to the public.
2. Each Fund relying on the requested order will disclose in its prospectus the existence, substance, and effect of any order granted pursuant to this application. Each Fund will hold itself out to the public as utilizing the Manager of Managers Structure. The prospectus will prominently disclose that the Adviser has ultimate responsibility (subject to oversight by the Board) to oversee the Subadvisers and recommend their hiring, termination, and replacement.
3. Within 90 days of the hiring of a new Subadviser, shareholders of the affected Fund will be furnished all information about the new Subadviser that would be included in a proxy statement. To meet this obligation, each Fund will provide shareholders within 90 days of the hiring of a new Subadviser an information statement meeting the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the Securities Exchange Act of 1934.
4. The Adviser will not enter into a subadvisory agreement with any Affiliated Subadviser without such agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Fund.
5. At all times, at least a majority of the Board will be Independent Trustees, and the nomination of new or additional Independent Trustees will be placed within the discretion of the then-existing Independent Trustees.
6. Whenever a subadviser change is proposed for a Fund with an Affiliated Subadviser, the Board, including a majority of the Independent Trustees, will make a separate finding, reflected in the applicable Board minutes, that such change is in the best interests of the Fund and its shareholders, and does not involve a conflict of interest from which the Adviser or the Affiliated Subadviser derives an inappropriate advantage.
7. The Adviser will provide general management services to each Fund, including overall supervisory responsibility for the general management and investment of each Fund's assets and, subject to review and approval of the Board, will: (a) Set each Fund's overall investment strategies; (b) evaluate, select and recommend Subadvisers to manage all or a part of each Fund's assets; (c) allocate and, when appropriate, reallocate each Fund's assets among one or more Subadvisers; (d) monitor and evaluate the performance of Subadvisers; and (e) implement procedures reasonably designed to ensure that the Subadvisers comply with each Fund's investment objective, policies and restrictions.
8. No trustee or officer of the Trust or a Fund, or director, manager, or officer of the Adviser, will own directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person), any interest in a Subadviser, except for (a) Ownership of interests in the Adviser or any entity that controls, is controlled by, or is under common control with the Adviser or (b) ownership of less than 1% of the outstanding securities of any class of equity or debt of any publicly traded company that is either a Subadviser or an entity that controls, is controlled by, or is under common control with a Subadviser.
9. In the event the Commission adopts a rule under the Act providing substantially similar relief to that in the order requested in the application, the requested order will expire on the effective date of that rule.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA's Code of Procedure that includes: (1) Allowing service of a complaint (and notices of certain expedited proceedings) on counsel or another person authorized to represent others when such representative agrees to accept service; (2) permitting electronic filing of papers with an adjudicator; (3) decreasing the number of copies required to be filed with the adjudicator; (4) giving counsel to the National Adjudicatory Council (“NAC”) authority to set the specifications and the number of copies of all papers to be filed with the NAC; (5) requiring an attorney seeking to withdraw from a disciplinary case to file a motion before withdrawal would be approved; (6) adding an additional, permissive subject for a pre-hearing conference; (7) allowing FINRA staff to set the rate for copies; (8) allowing Hearing Officers to manage the parties' pre-hearing submissions to reduce and eliminate duplicative filings; (9) giving Hearing Panels and the NAC additional
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA's Code of Procedure (the “Code”) contains detailed provisions for initiating and adjudicating various types of actions, including disciplinary, eligibility, expedited, and cease and desist proceedings.
FINRA Rule 9131(a) requires a complaint to be served on each party by the Department of Enforcement or the Department of Market Regulation. Currently, the rule does not explicitly permit FINRA staff to serve the complaint on a party's counsel. Many parties, however, are represented by counsel when a complaint is ready to be served. FINRA proposes to accommodate respondents who have retained counsel and have authorized them to accept service. The proposed rule change amends FINRA Rule 9131(a) to clarify that only the Department of Enforcement or the Department of Market Regulation can serve a complaint and to allow for service on counsel or another person authorized to represent others when such representative agrees to accept service of the complaint. FINRA also seeks to address an issue created by the Rules of Professional Conduct in many states, which require that, once a person retains an attorney, unless the attorney specifically provides otherwise, all communications be directed to counsel.
FINRA Rule 9131(a) also provides that a party initiating a proceeding shall serve a document initiating a proceeding on the other party. FINRA proposes to delete this provision because it has been superseded by other FINRA rules and no longer plays a role in expedited proceedings.
The FINRA Rule 9550 Series provides procedures for initiating and adjudicating expedited proceedings. The service provisions contained in the rules under the Rule 9550 Series are similar to FINRA Rule 9131(a) in that they require serving notice on a member, person associated with a member or person subject to FINRA's jurisdiction, but do not discuss service on counsel. For the reasons set forth above, FINRA is proposing to amend FINRA Rules 9551(b), 9552(b), 9553(b), 9554(b), 9555(b) and 9556(b) to allow for service on counsel or other person authorized to represent others when such representative agrees to accept service of a notice.
FINRA Rule 9135(a) prescribes the timing for the filing of papers with an adjudicator. Complaints are deemed timely filed upon mailing or delivery to the Office of Hearing Officers. Other papers required to be filed are deemed timely if, on the same day such papers are served, they are also hand-delivered, mailed via U.S. Postal service first class mail or sent by courier to FINRA. In recognition of the increased use of electronic mail, FINRA is proposing to amend FINRA Rule 9135(a) to allow the use of electronic mail as another delivery method for complaints and other papers required to be filed with an adjudicator.
FINRA Rule 9136 establishes the form for papers filed in connection with a disciplinary proceeding or a review of a disciplinary proceeding. FINRA is proposing to amend FINRA Rule 9136(a)(5) to require such papers to contain single-spaced footnotes. Additionally, to reduce duplication, FINRA is proposing to amend FINRA Rule 9136(c) by decreasing the number of copies required to be filed with the adjudicator from three to one, unless otherwise ordered. Finally, the proposed rule change amends FINRA Rule 9313 by giving counsel to the NAC the authority to set the specifications and the number of copies of all papers to be filed with the NAC. The proposed rule change is consistent with counsel to the NAC's other ministerial and administrative responsibilities under the rule, and it furthers the efficient administration of review proceedings.
FINRA Rule 9142 requires an attorney for a party or person authorized to represent others seeking to withdraw to give notice setting forth good cause for the withdrawal at least 30 days prior to withdrawal, unless circumstances do not permit. It has been FINRA staff's experience that, on occasion, an attorney believes that his or her withdrawal is effective immediately upon filing the notice, and the attorney does not provide any contact
FINRA Rule 9241(c) delineates the subjects that the Hearing Officer, in a pre-hearing conference, may consider and act upon. The proposed rule change amends FINRA Rule 9241 by adding an additional, permissive subject for a pre-hearing conference: designation of relevant portions of transcripts from investigative testimony or other proceedings and the inclusion of an index for such testimony. It has been FINRA staff's experience that parties sometimes introduce voluminous testimonial transcripts into evidence, without specifying the particular sections of such transcripts that are relevant to the proceeding and without an index. The proposed rule change promotes efficiency by bringing into focus the relevant portions of testimonial transcripts.
FINRA Rule 9251(f) allows a respondent to obtain a photocopy of all documents made available for inspection by the Department of Enforcement or the Department of Market Regulation. Unless otherwise ordered, charges for copies made at the request of a respondent shall be at a rate to be established by the Board of FINRA or FINRA Regulation. The proposed rule change amends FINRA Rule 9251(f) to identify FINRA staff as setting the rate for copies. Copying costs are based on rates charged by local copying vendors in the area where FINRA maintains the documents. FINRA staff is familiar with these copying rates and will base the rates accordingly.
FINRA Rule 9261(a) addresses pre-hearing disclosures and requires each party to submit to all other parties and to the Hearing Officer copies of documentary exhibits the parties intend to introduce and the names of the witnesses each party intends to present at a hearing. Currently, pre-hearing, proposed documentary evidence submitted to the Hearing Officer becomes part of the record. At the hearing, all of the documents that are admitted into evidence also become part of the record.
The proposed rule change amends FINRA Rule 9261(a) to establish that documentary evidence submitted prior to a hearing shall not become part of the record, unless a Hearing Officer, Hearing Panel, or Extended Hearing Panel orders that it will be. Further, the Hearing Officer may order each party—who will continue to exchange proposed documentary evidence with other parties—to refrain from submitting its proposed documentary evidence to the Hearing Officer. The proposed amendment reduces duplication of documents in the record and will prevent the copying of thousands of pages of pre-hearing exhibits each year.
FINRA Rules 9268(b)(1) and 9349(b)(1) require that a statement describing the investigative or other origin of the disciplinary proceeding be included in the contents of a decision of the Hearing Panel or the NAC, respectively. The proposed rule change amends this provision to require such statement only if it is not otherwise contained in the record. The proposed amendment reduces unnecessary statements from disciplinary decisions.
FINRA Rule 9312(a)(2) requires that if a default decision issued pursuant to FINRA Rule 9269 is called for review by the General Counsel within 25 days after the date of service of the decision, such decision shall be reviewed by the NAC. FINRA proposes to amend the rule to clarify that the Review Subcommittee also may review such decisions.
FINRA Rule 9341(a) establishes the procedure for a party requesting an oral argument before the Subcommittee or, if applicable, the Extended Proceeding Committee.
FINRA Rule 9344(a) gives the NAC or the Review Subcommittee discretion on how to proceed when an appealing party did not participate in the disciplinary proceeding before a Hearing Officer, a Hearing Panel or, if applicable, an Extended Hearing Panel.
The proposed rule change substitutes the word “shall” for “may” when describing the NAC's action when a party shows good cause because the applicable remedy in this circumstance is always a remand with instructions. Default decisions against a respondent allow the Hearing Officer to deem the allegations in the complaint admitted, a practice that is widely followed in FINRA proceedings.
FINRA Rule 9524(a)(5) gives a Hearing Panel in an eligibility proceeding the ability, after obtaining consent of all the parties, to extend or shorten any time limits prescribed by the Code for the filing of any papers. The proposed rule change removes the consent requirement for any extension of such time limits to empower Hearing Panels with authority over such scheduling matters. This change makes eligibility proceedings consistent with disciplinary proceedings.
FINRA Rule 9146(j)(3) requires that in the FINRA Rule 9500 Series, a motion shall be decided by an adjudicator. FINRA proposes to amend the rule by allowing Counsel to the NAC to decide a procedural motion made pursuant to an eligibility proceeding or an expedited proceeding. This proposed rule change enables Counsel to the NAC to handle procedural motions in a more efficient and expeditious manner, and is similar to Counsel to the NAC's authority to dispose of procedural motions in disciplinary proceedings.
FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(8) of the Act,
First, FINRA believes that the proposed rule change promotes fair procedures by improving the ability of adjudicators and their advisors to manage efficiently cases at both the trial level and on appeal. Several proposed revisions give specific authority to Hearing Officers, the Review Subcommittee, and counsel to the NAC such as: (1) Adding an additional subject at a pre-hearing conference that brings into focus the relevant portions of testimonial transcripts; (2) clarifying that the Review Subcommittee may review certain default decisions rather than the NAC; (3) giving counsel to the NAC authority to set the specifications and the number of copies of all papers to be filed with the NAC; (4) allowing counsel to the NAC to decide a procedural motion made in an eligibility proceeding or an expedited proceeding; (5) allowing a Hearing Panel in an eligibility proceeding to extend time limits for the filing of any papers; and (6) allowing FINRA staff to determine copying costs. These improvements to and confirmations of case management authority will allow adjudicators and advisors to follow fair procedures by applying appropriate rules to a suitable case.
Second, the proposed rule change promotes fair procedures by reducing costs, conserving resources, and making participation in the disciplinary process somewhat easier. By decreasing the number of copies that the parties must file with the adjudicator, the proposed rule change to FINRA Rule 9136(e) will reduce costs to the parties. From the perspective of FINRA and its adjudicators, moreover, the proposed rule change to FINRA Rule 9261(a) will prevent the inclusion in the record of hundreds of duplicate exhibits that are otherwise contained in the record. Moreover, the proposed rule change to FINRA Rules 9268(b)(1) and 9349(b)(1) reduces duplication by requiring a statement describing the origin of a disciplinary proceeding be included only if it is not otherwise contained in the record. And by authorizing an adjudicator to cancel a previously scheduled oral argument that has been abandoned by a respondent, the proposed rule change to FINRA Rule 9341(a) prevents unnecessary travel by adjudicators and FINRA staff. These latter revisions will reduce FINRA's costs.
Another aspect of the proposed rule change promotes fair procedures by allowing the parties to comply with the Code more easily. Parties will be allowed to, but not required to, file papers with an adjudicator by email. Respondents also will have the option of authorizing their attorney or representative to accept service of a complaint and notices of certain expedited proceedings. Additionally, the proposed rule change promotes clarity by stating more directly the process for a party who seeks to appeal from a default decision.
The proposed rule change also reserves an adjudicator's ability to customize an order to promote fairness, based on the facts of that case. For example, a Hearing Officer may order that a particular pre-hearing submission
Third, the proposed rule change protects the public interest by requiring an attorney seeking to withdraw from a disciplinary case to file a motion (which will provide contact information for the party previously represented) before withdrawal would be approved. The proposed revision seeks to reduce any uncertainly as to whether a respondent is represented by an attorney. By requiring an attorney to file a motion for withdrawal, adjudicators and the parties will know that an attorney continues to represent the respondent until the motion is granted. This proposed revision promotes an effective disciplinary system in which cases can proceed to a hearing. By furthering an effective disciplinary system, the proposed rule change is consistent with the public interest in imposing disciplinary sanctions on FINRA firms and associated persons who violate FINRA Rules or the federal securities laws.
For each of these reasons, FINRA believes that the proposed rule change will improve the process and procedures that govern the adjudication of disciplinary cases and expedited proceedings.
FINRA 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.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
PHLX is filing this proposed rule change to allow a limited use of its broker-dealer affiliate, Nasdaq Execution Services LLC (“NES”), to perform a test of routing functionality to be introduced by NASDAQ OMX PSX (“PSX”). PHLX proposes to implement the rule change prior to November 14, 2011. The text of the proposed rule change is available 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
As provided in Rule 3315, PSX recently adopted rules that will allow it to route orders to other trading venues for execution.
The test will be performed through two buy orders for 100 shares in a highly liquid security, such as the Power Shares QQQ Trust. Upon the execution of each buy order, NES will enter an offsetting sell order in the same security for the same quantity, in order to close out the test position and minimize financial impact on the Exchange. For the buy orders, NES will submit a routable marketable limit order with a time-in-force of Immediate or Cancel to the Exchange, with instructions to route to a directed away market. The Exchange will then deliver the order to NES, as the routing broker, which will route to the designated away market and receive an execution back. The first offsetting sell order will be handled in a similar manner. The second offsetting sell order will be executed at the Exchange itself, to ensure that the Exchange's systems are correctly distinguishing between routed and non-routed trades. To the extent that the offsetting trades require the Exchange to pay out funds, the funds will be provided out of the cash accounts of the Exchange; to the extent that the trades result in a profit, the funds will be deposited in the cash accounts of the Exchange.
PHLX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
PHLX 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.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Exchange believes that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest because it would allow the Exchange to conduct a limited test to assess the performance of its routing functionality and related systems prior to implementation and use by its members. The Exchange believes that a limited test prior to the launch of its routing functionality will assist the Exchange in uncovering and fixing any potential “bugs” so as to increase the likelihood of a successful implementation. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because such waiver would allow the Exchange to conduct a limited test without undue delay to ensure that its routing functionality and related systems are operating properly prior to implementation. Therefore, the Commission designates the proposal operative upon filing.
the proposed rule's impact on efficiency, competition, and capital formation.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 52.8 to clarify that CBOE Stock Exchange (“CBSX”), CBOE's stock trading facility, will only process round-lot orders
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Rule 52.8 states that odd-lot orders (including the odd-lot potion of a mixed-lot order) are processed in the same manner as are round-lot orders, except (i) If an incoming odd-lot order trades against a quote in the CBSX Book, the new quantity remaining in the quote will be rounded down to the nearest lower round-lot amount (zero or multiple of 100) for display purposes, with the remaining odd-lot amount being cancelled, or (ii) if an incoming order trades against a limit order resting on the CBSX Book and an odd-lot amount remains from the limit order resting on the CBSX Book, that odd-lot amount will remain in the system eligible for execution but will not be displayed.
HOLDRS are Trust Issued Receipts that trade on CBSX and represent an investor's beneficial ownership of a specified group of stocks in various industries, sectors or groups.
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Act
CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay period. The Commission believes that such action is consistent with the protection of investors and the public interest, because it will enable the Exchange immediately to align its trading rules with respect to HOLDRS with provisions of the HOLDRS prospectuses. Therefore, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Chapter IV, Section 6 (Series of Options Contracts Open for Trading) of the Rules of the Boston Options Exchange Group, LLC (“BOX”) to simplify the $1 Strike Price Interval Program (“Program”).
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.
This filing is based on a rule change submitted by the Chicago Board Options Exchange, Inc. (“CBOE”) previously approved by the Commission, and a rule change by the International Securities Exchange, LLC. (“ISE”) effective and operative upon its filing.
In 2004, the Commission issued an order permitting the establishment of the Program on BOX on a pilot basis.
The pilot program has been renewed on BOX on a yearly basis and in 2008, the Commission granted permanent approval of the Program.
The most recent expansion of the Program was approved by the Commission in early 2011 and increased the number of $1 strike price intervals permitted within the $1 to $50 range.
• When the price of the underlying stock is equal to or less than $20, permit $1 strike price intervals with an exercise price up to 100% above and 100% below the price of the underlying stock.
○ However, the above restriction would not prohibit the listing of at least five (5) strike prices above and below the price of the underlying stock per expiration month in an option class.
○ For example, if the price of the underlying stock is $2, BOX would be permitted to list the following series: $1, $2, $3, $4, $5, $6 and $7.
• When the price of the underlying stock is greater than $20, permit $1 strike price intervals with an exercise price up to 50% above and 50% below the price of the underlying security up to $50.
• For the purpose of adding strikes under the Program, the “price of the underlying stock” shall be measured in the same way as “the price of the underlying security” is as set forth in Chapter IV, Section 6(b)(i) of the BOX Rules.
• Prohibit the listing of additional series in $1 strike price intervals if the underlying stock closes at or above $50 in its primary market and provide that additional series in $1 strike price intervals may not be added until the underlying stock closes again below $50.
The early 2011 expansion of the Program permitted for some limited listing of LEAPS in $1 strike price intervals for classes that participate in the Program. The Exchange is proposing to maintain the expansion as to LEAPS, but simplify the language and provide examples of the simplified rule text. These changes are set forth subparagraph (v) to Supplementary Material .02(b).
For stocks in the Program, BOX may list one $1 strike price interval between each standard $5 strike interval, with the $1 strike price interval being $2 above the standard strike for each interval above the price of the underlying stock, and $2 below the standard strike for each interval below the price of the underlying stock (“$2 wings”). For example, if the price of the underlying stock is $24.50, BOX may list the following standard strikes in $5 intervals: $15, $20, $25, $30 and $35. Between these standard $5 strikes, BOX may list the following $2 wings: $18, $27 and $32.
In addition, BOX may list the $1 strike price interval which is $2 above the standard strike just below the underlying price at the time of listing. In the above example, since the standard strike just below the underlying price ($24.50) is $20, BOX may list a $22 strike. BOX may add additional long-term options series strikes as the price of the underlying stock moves, consistent with the OLPP.
The early 2011 expansion of the Program prohibited the listing of $2.50 strike price intervals for classes that participate in the Program. This prohibition applies to non-LEAP and LEAPS. The Exchange proposes to maintain this prohibition and codify it in Supplementary Material .02(a) (Program Description).
For ease of reference, the Exchange is proposing to add the headings “$1 Strike Price Interval Program,” “Program Description,” “Initial and Additional Series” and “LEAPS” to Supplementary Material .02.
The Exchange is proposing to more accurately reflect the nature of the Program and is proposing to make stylistic changes throughout Supplementary Material .02 by adding the phrase “price interval.” Lastly, the Exchange is making technical changes to Supplementary Material .02, e.g., replacing the words “security” and “issue” with the word “stock.”
The Exchange represents that it has the necessary systems capacity to support the increase in new options series that will result from the proposed streamlining changes to the Program.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder and, in particular, the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest. The proposed rule change is substantially similar to $1 Strike Price Program rules in place at other exchanges, so the Commission's action will allow the Exchange to implement these changes without undue delay. Therefore, the Commission designates the proposal operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 23, 2011, the International Securities Exchange, LLC (“ISE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change seeks to amend ISE Rules 504 and 2009 to
In the Notice, the Exchange stated that the principal reason for the proposed expansion is customer demand for adding, or not removing, classes from the STOS Program. Specifically, ISE cited an increased demand for more series when market-moving events, such as corporate events and large price swings, have occurred during the life span of an affected STOS class. Currently, if the maximum number of series has been reached, the Exchange must delete or delist certain series in order to make room for more in-demand series.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposal, the Commission notes that the Exchange has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes and series in the STOS Program. The Commission expects the Exchange to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 28, 2011, The NASDAQ Stock Market LLC (“NASDAQ”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASDAQ proposed to amend Chapter IV, Section 6 and Chapter XIV, Section 11 of the Short Term Option Series Program (“STO Program” or “Program”) to: (1) Increase from 15 to 30 the number of option classes on which STO Series may be opened; and (2) allow the Exchange to open STO Series that are opened by other securities exchanges (the “STO Exchanges”) in option classes selected by such exchanges under their respective short term option rules.
In the Notice, the Exchange stated that the principal reason for the proposed expansion is market demand for additional STO classes and series. NASDAQ stated that the Exchange has had to turn away STO customers because it could not list, or had to delist, STO Series or could not open adequate STO Series because of restrictions in the STO Program.
The Exchange also stated that it has analyzed its capacity, and represented that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes in the Program.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposal, the Commission notes that the Exchange has represented that it and OPRA have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes in the Program. The Commission expects the Exchange to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): Rockledge SectorSAM
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade the following Managed Fund Shares
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. In addition, Commentary .06 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 nonpublic information regarding the open-end fund's portfolio.
According to the Registration Statement, the Fund is considered a “fund-of-funds” that seeks to achieve its investment objective by primarily investing in other U.S.-listed exchange-traded funds (“Underlying ETFs”) that offer diversified exposure to U.S. large capitalization (generally, Standard & Poor 500 companies) sectors. The Sub-Adviser will use “Sector Scoring and Allocation Methodology” (“SectorSAM”), which is a proprietary quantitative analysis, to forecast each sector's excess return within a specific time horizon. The Sub-Adviser will seek to achieve the Fund's investment objective by buying (taking long positions in) Underlying ETFs intended to capture the performance of the most promising sectors and selling (establishing short positions) in Underlying ETFs with the intent of profiting from the least promising sectors of U.S. large capitalization broad market securities. The strategy is designed to generate higher returns in a higher interest rate environment, which is often associated with increased inflation.
Under normal circumstances,
The Underlying ETFs in which the Fund will invest will primarily be ETFs that hold substantially all of their assets in securities representing a specific index. The main risk of investing in index-based investments is the same as investing in a portfolio of securities comprising the index. The market prices of index-based investments will fluctuate in accordance with both changes in the market value of their underlying portfolio securities and due to supply and demand for the instruments on the exchanges on which they are traded (which may result in their trading at a discount or premium to their net asset values (“NAVs”).
The Fund, through its investment in Underlying ETFs, may invest in equity securities. Equity securities represent ownership interests in a company or partnership and consist of common stocks, preferred stocks, warrants to acquire common stock, securities convertible into common stock, and investments in master limited partnerships.
The Fund, through its investment in Underlying ETFs, may invest in American Depositary Receipts (“ADRs”), as well as Global Depositary Receipts (“GDRs,” together with ADRs, “Depositary Receipts”), which are certificates evidencing ownership of shares of a foreign issuer. Depositary Receipts may be sponsored or unsponsored. These certificates are issued by depositary banks and generally trade on an established market in the United States or elsewhere. The underlying shares are held in trust by a custodian bank or similar financial institution in the issuer's home country. The depositary bank may not have physical custody of the underlying securities at all times and may charge fees for various services, including forwarding dividends and interest and corporate actions. ADRs are alternatives to directly purchasing the underlying foreign securities in their national markets and currencies. However, ADRs continue to be subject to many of the risks associated with investing directly in foreign securities.
Investments in Foreign Equity Securities. Through Underlying ETFs, the Fund may invest in the equity securities of foreign issuers, including the securities of foreign issuers in emerging market countries. Emerging or developing markets exist in countries that are considered to be in the initial stages of industrialization. The risks of investing in these markets are similar to the risks of international investing in general, although the risks are greater in emerging and developing markets. Countries with emerging or developing securities markets tend to have economic structures that are less stable than countries with developed securities markets. This is because their economies may be based on only a few industries and their securities markets may trade a small number of securities. Prices on these exchanges tend to be volatile, and securities in these countries historically have offered greater potential for gain (as well as
The Fund, through its investment in Underlying ETFs, may invest in closed-end funds, pooled investment vehicles that are registered under the 1940 Act and whose shares are listed and traded on U.S. national securities exchanges.
The Fund, through its investment in Underlying ETFs, may invest in shares of real estate investment trusts (“REITs”). REITs are pooled investment vehicles which invest primarily in real estate or real estate related loans. REITs are generally classified as equity REITs, mortgage REITs or a combination of equity and mortgage REITs.
The Fund intends to invest primarily in the securities of Underlying ETFs consistent with the requirements of Section 12(d)(1) of the 1940 Act, or any rule, regulation or order of the Commission or interpretation thereof.
The Underlying ETFs may invest in complex securities such as equity options, index options, repurchase agreements, foreign currency contracts and swaps.The Fund does not intend to invest in leveraged, inverse or inverse leveraged Underlying ETFs.
The following describes the Sub-Adviser's investment process, as described in the Registration Statement:
Quantitative Analysis. Rockledge has developed a proprietary SectorSAM
SectorSAM analysis provides for individual sector forecasts through analysis of over 200 fundamental, macroeconomic and technical factors influencing stock returns. The SectorSAM process creates a basket of factors that are meaningful to each economic sector within the S&P 500 Index. Rockledge reviews the information to make portfolio decisions on behalf of the Fund.
Long/Short Portfolio Construction. The Fund's portfolio will be comprised primarily of an equal dollar amount of long and short positions based on the Rockledge relative value strategy.
1. The U.S. economy goes through various growth and contraction stages and the various economic sectors reflect these changes.
2. Large capitalization stocks are heavily researched and well known to equity analysts. The valuations and pricing of these stocks are very close to efficient. It is difficult to make significant outsized returns by investing in individual large capitalization stocks.
3. The valuation of each U.S. economic sector is directly based on the aggregation of valuation of the individual companies making up that sector. Up to 90% of an individual stock's performance can be attributed to the return of the sector that stock is in.
4. Sector investing provides a better risk/return profile than individual stock investing. Sector investing eliminates company specific risk as sectors are inherently diversified.
5. Appropriately and correctly forecasted, one can capture both the upside potential of the outperforming sectors and downside loss of the underperforming sectors, relative to a broad market index.
6. There can be significant performance dispersion among various economic sectors. The ability to identify which sectors will outperform the broad market and which will underperform over a specified time period can lead to considerable cumulative absolute returns.
Risk Management. The Fund's core long/short portfolio construction generally will be dollar neutral, where the value of all long positions is equal to the value of all short positions. According to the Registration Statement, this provides a high degree of inherent risk control, especially when stock markets are falling. The short positions provide protection against market declines, and may offer the potential to generate positive returns when markets are falling if the short positions fall more than the long positions. Rockledge will use a number of methods to monitor and manage the inherent risk of the portfolio including the tracking of relative sector exposure, volatility, and sector correlations. Rockledge proactively will monitor its positions, exposure and performance attribution on a real-time basis to identify, monitor and mitigate the most threatening risks to the Fund's ability to attain its investment objective.
The Fund's portfolio holdings will be disclosed on the Trust's Web site daily after the close of trading on the Exchange and prior to the opening of trading on the Exchange the following day.
To respond to adverse market, economic, political or other conditions,
The Fund, or the Underlying ETFs in which it invests, may invest in U.S. Treasury zero-coupon bonds. These securities are U.S. Treasury bonds
The Fund may invest in exchange-traded notes (“ETNs”). As described in the Registration Statement, ETNs are debt obligations of investment banks which are traded on exchanges and the returns of which are linked to the performance of market indexes. In addition to trading ETNs on exchanges, investors may redeem ETNs directly with the issuer on a weekly basis, typically in a minimum amount of 50,000 units, or hold the ETNs until maturity. ETNs may be riskier than ordinary debt securities and may have no principal protection.
The Fund may not (i) With respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities or shares of investment companies) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer. For purposes of this policy, the issuer of the underlying security will be deemed to be the issuer of any respective Depositary Receipt.
The Fund may not invest 25% or more of its total assets in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries. This limitation does not apply to investments in securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities, or shares of investment companies. The Fund will not invest 25% or more of its total assets in any investment company that so concentrates. For purposes of this policy, the issuer of the underlying security will be deemed to be the issuer of any respective Depositary Receipt.
The Fund will not purchase illiquid securities, including Rule 144A securities and loan participation interests.
According to the Registration Statement, the Fund will seek to qualify for treatment as a Regulated Investment Company (“RIC”) under the Internal Revenue Code.
Except for Underlying ETFs that may hold non-U.S. issues, the Fund will not otherwise invest in non-U.S.-registered issues.
Pursuant to the terms of the Exemptive Order, the Fund will not invest in options contracts, futures contracts or swap agreements. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
The Fund will calculate NAV by: (i) Taking the current market value of its total assets; (ii) subtracting any liabilities; and (iii) dividing that amount by the total number of Shares owned by shareholders.
The Fund will calculate NAV once each business day as of the regularly scheduled close of the Core Trading Session on the Exchange (normally, 4 p.m., Eastern Time).
In calculating NAV, the Fund generally will value investment portfolios at market price. If market prices are unavailable or the Adviser believes they are unreliable, or when the value of a security has been materially affected by events occurring after the relevant market closes, the Fund will price those securities at fair value as determined in good faith using methods approved by the Fund's Board of Trustees.
The use of fair valuation in pricing a security involves the consideration of a number of subjective factors and therefore, is susceptible to the unavoidable risk that the valuation may be higher or lower than the price at which the security might actually trade if a reliable market price were readily available.
The Fund will offer and issue Shares on a continuous basis at NAV only in aggregated lots of 50,000 or more Shares (each a “Creation Unit” or a “Creation Unit Aggregation”), generally in exchange for: (i) A basket of equity securities (“Deposit Securities”); and (ii) an amount of cash (“Cash Component”). Shares are redeemable only in Creation Unit Aggregations, and, generally, in exchange for portfolio securities and a specified cash payment.
A “creator” will enter into an authorized participant agreement (“Participant Agreement”) with the Distributor or use a Depository Trust Company (“DTC”) participant who has executed a Participant Agreement (“Authorized Participant”), and deposit into the Fund a portfolio of securities closely approximating the holdings of the Fund and a specified amount of cash, together totaling the NAV of the Creation Unit(s), in exchange for 50,000 Shares of the Fund (or multiples thereof).
All orders to purchase Creation Units must be received by the Distributor no later than the close of the regular trading session on the NYSE (ordinarily 4 p.m., Eastern Time) on the date such order is placed in order for the purchase of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Administrator and only on a business day. With respect to the Fund, the Administrator, through the National Securities Clearing Corporation (“NSCC”), will make available immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time) on each business day, the portfolio of securities (“Fund Securities”) that will be applicable to redemption requests received in proper form on that day. Fund Securities received on redemption may not be identical to Deposit Securities which are applicable to creations of Creation Units. Unless cash redemptions are available or specified for the Fund, the redemption proceeds
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3 under the Exchange Act,
The Fund's Web site (
On a daily basis, the Adviser will disclose for each portfolio security or other financial instrument of the Fund the following information on the Fund's Web site: Ticker symbol (if applicable), name of security or financial instrument, number of shares or dollar value of financial instruments held in the portfolio, and percentage weighting of the security or financial instrument in the portfolio. The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities required to be delivered in exchange for the Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via NSCC. The basket represents one Creation Unit of the Fund.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and the Trust's Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
The dissemination of the Portfolio Indicative Value, together with the Disclosed Portfolio, will allow investors to determine the value of the underlying portfolio of the Fund on a daily basis and to provide a close estimate of that value throughout the trading day. The intra-day, closing and settlement prices of the portfolio securities are also readily available from the national securities exchanges trading such securities, automated quotation systems, published or other public sources, or on-line information services such as Bloomberg or Reuters.
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m., Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Managed Fund Shares) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit Aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4 p.m., Eastern Time each trading day.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. The holdings of the Fund will be comprised primarily of U.S.-exchange listed Underlying ETFs. The listing and trading of such Underlying ETFs is subject to rules of the exchanges on which they are listed and traded, as approved by the Commission. Except for Underlying ETFs that may hold non-U.S. issues, the Fund will not otherwise invest in non-U.S.-registered issues. The Fund will not purchase illiquid securities, including Rule 144A securities and loan participation interests. The Fund does not intend to invest in leveraged, inverse or inverse leveraged Underlying ETFs. The Fund will not invest in options contracts, futures contracts or swap agreements.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. In addition, the Portfolio Indicative Value will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the Disclosed Portfolio that will form the basis for the Fund's calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares is and 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 will be available via the CTA high-speed line. The Web site for the Fund will include a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE. Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Professional Routing Fee governing pricing for Exchange members using the Phlx XL II system,
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on December 1, 2011.
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
The purpose of the proposed rule change is to recoup costs that the Exchange incurs for routing and executing Professional orders in equity and index options to BATS. The Exchange's Fee Schedule includes Routing Fees for routing and executing Customer and Professional orders to away markets. The Exchange currently assesses a Professional Routing Fee of $0.36 per contract for option orders that are routed to BATS.
In May 2009, the Exchange adopted Rule 1080(m)(iii)(A) to establish Nasdaq Options Services LLC (“NOS”), a member of the Exchange, as the Exchange's exclusive order router.
As with all fees, the Exchange may adjust these Routing Fees in response to competitive conditions by filing a new proposed rule change.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that this fee is reasonable because it seeks to recoup costs that are incurred by the Exchange when routing Professional orders to BATS on behalf of its members. Each destination market's transaction charge varies and there is a standard clearing charge for each transaction incurred by the Exchange. The Exchange believes that the proposed Routing Fee would enable the Exchange to recover the professional taker fee assessed by BATS, plus clearing fees for the execution of Professional orders. The Exchange also believes that the proposed Routing Fee is equitable and not unfairly discriminatory because it would be uniformly applied to all Professionals.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE. Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 28, 2011, NASDAQ OMX PHLX LLC (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to amend Rule 1012 (Series of Options Open for Trading) and Rule 1101A (Terms of Option Contracts) to expand the Short Term Option Series Program (“STO Program” or “Program”) to: (1) Increase from 15 to 30 the number of option classes on which STO Series may be opened; and (2) allow the Exchange to open STO Series that are opened by other securities exchanges (the “STO Exchanges”) in option classes selected by such exchanges under their respective short term option rules.
In the Notice, the Exchange stated that the principal reason for the proposed expansion is market demand for additional STO classes and series. The Exchange stated that it has had to turn away STO customers because it could not list, or had to delist, STO Series or could not open adequate STO Series because of restrictions in the STO Program.
The Exchange also stated that it has analyzed its capacity, and represented that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes in the Program.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposal, the Commission notes that Exchange has represented that it and OPRA have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes in the Program. The Commission expects the Exchange to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 19, 2011, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change seeks to amend CBOE Rules 5.5 and 24.9 to increase the number of Short Term Options Series (“Weekly options”) that may be opened for each option class that participates in the Exchange's Short Term Option Series Program (“Weeklys Program”).
In the Notice, the Exchange stated that the principal reason for the proposed expansion is market demand for additional series in Weekly option classes in which the maximum number of series (20) has already been reached. Specifically, CBOE cited an increased demand for more series when market-moving events, such as corporate events and large price swings, have occurred during the life span of an affected Weekly option class. Currently, if the maximum number of series has been reached, the Exchange must delete or delist certain series in order to make room for more in-demand series. The Exchange deletes series with no open interest and delists series with open interest if those series are open for trading on another exchange.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposal, the Commission notes that the Exchange has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of series for classes that participate in the Weeklys Program. The Commission expects the Exchange to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 27, 2011, the Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-OCC-2011-14 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the proposed rule change is to remove any potential cloud on the jurisdictional status of options on the CBOE Silver ETF Volatility Index, which is an index that measures the implied volatility of options on the iShares Silver Trust, an exchange-traded fund designed to reflect the performance of the price of silver.
In its capacity as a “derivatives clearing organization” registered as such with the CFTC, OCC has filed this proposed rule change for prior approval by the CFTC pursuant to provisions of the Commodity Exchange Act (the “CEA”) in order to foreclose any potential liability under the CEA based on an argument that the clearing by OCC of such options as securities options constitutes a violation of the CEA.
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions and derivative transactions.
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 (“Act”)
The Exchange proposes to modify Rule 7050, governing pricing for NASDAQ members using the NASDAQ Options Market (“NOM”), NASDAQ's facility for executing and routing standardized equity and index options. In addition the Exchange is also proposing to make minor amendments to Rule 7053, entitled “NASDAQ Options Market—Access Services.”
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on December 1, 2011.
The text of the proposed rule change is set forth below. Proposed new text is in italics and deleted text is in brackets.
The following charges shall apply to the use of the order execution and routing services of the NASDAQ Options Market for all securities.
(4) Fees for routing contracts to markets other than the NASDAQ Options Market shall be assessed as provided below. The current fees and a historical record of applicable fees shall be posted on the NasdaqTrader.com Web site.
[Part A: The following charges are assessed by Nasdaq for connectivity to the NASDAQ Options Market for NOM 1.0:]
[(a) Financial Information Exchange (FIX) ]
[(b) TradeInfo]
[• Members not subscribing to the Nasdaq Workstation using TradeInfo will be charged a fee of $95 per user per month.]
[(c) Other Port Fees]
[The following port fees shall apply in connection with the use of other trading telecommunication protocols:]
[Part B: The following charges are assessed by Nasdaq for connectivity to the NASDAQ Options Market for NOM 2.0 as of August 26, 2011 through September 30, 2011:]
[(a) TradeInfo]
[• Members not subscribing to the Nasdaq Workstation using TradeInfo will be charged a fee of $95 per user per month.]
[(b) Port Fees, per port per month, as follows:]
[Part C:] The following charges[*] are assessed by Nasdaq for connectivity to the NASDAQ Options Market [as of October 3, 2011]:
(a) TradeInfo
• Members not subscribing to the Nasdaq Workstation using TradeInfo will be charged a fee of $95 per user per month.
(b) Port Fees, per port per month, as follows:
[* As of October 3, 2011, the fees in Parts A and B shall no longer apply. All NOM Participants will be assessed the fees in Part C.]
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.
NASDAQ is proposing to modify Rule 7050 governing fees assessed for option orders entered into NOM but routed to and executed on away markets (“Routing Fees”). Specifically, NASDAQ is proposing to amend the Professional Routing Fee for orders routed to the BATS Exchange, Inc. (“BATS”).
The Exchange currently assesses the following Routing Fees to route orders to BATS: a Customer is assessed $0.36 per contract; a Firm is assessed $0.55 per contract; a Market Maker is assessed $0.55 per contract; and a Professional is assessed $0.36 per contract. The Exchange is proposing to amend the Professional Routing Fee to BATS from $0.36 per contract to $0.48 per contract. The other BATS Routing Fees for Customers, Firms and Market Makers would remain the same.
BATS recently adopted a definition for a professional and amended its Fee Schedule to assess a fee of $.42 for professionals that remove liquidity from BATS Options.
In addition, the Exchange proposes to amend Exchange Rule 7053 to remove outdated text. The Exchange previously filed a rule change to amend Exchange Rule 7053 in connection with trading system enhancements that were to take place on October 3, 2011.
NASDAQ believes that the proposed rule changes are consistent with the provisions of Section 6 of the Act,
The Exchange believes that the amendment to the BATS Professional Routing Fee is reasonable because it seeks to recoup costs that are incurred by the Exchange when routing Professional orders to BATS on behalf of its members. Each destination market's transaction charge varies and there is a standard clearing charge for each transaction incurred by the Exchange. The Exchange believes that the proposed Professional Routing Fee would enable the Exchange to recover the professional taker fee assessed by BATS, plus clearing fees for the execution of Professional orders. The Exchange also believes that the proposed Routing Fee is equitable and not unfairly discriminatory because it would be uniformly applied to all Professionals.
In addition, the Exchange believes that the proposed amendments to Exchange Rule 7053 are reasonable, equitable and not unfairly discriminatory because the amendments seek to remove outdated and unnecessary language from the Rule text. The amendments will clarify the current Rule for all NOM Participants.
NASDAQ is one of nine options market in the national market system for standardized options. Joining NASDAQ and electing to trade options is entirely voluntary. Under these circumstances, NASDAQ's fees must be competitive and low in order for NASDAQ to attract order flow, execute orders, and grow as a market. NASDAQ thus believes that its fees are fair and reasonable and consistent with the Exchange Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
BX is filing this proposed rule change to allow a limited use of its broker-dealer affiliate, Nasdaq Execution
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.
As provided in Rule 4758, BX recently adopted rules that will allow it to route orders to other trading venues for execution.
The test will be performed through two buy orders for 100 shares in a highly liquid security, such as the Power Shares QQQ Trust. Upon the execution of each buy order, NES will enter an offsetting sell order in the same security for the same quantity, in order to close out the test position and minimize financial impact on the Exchange. For the buy orders, NES will submit a routable marketable limit order with a time-in-force of Immediate or Cancel to the Exchange, with instructions to route to a directed away market. The Exchange will then deliver the order to NES, as the routing broker, which will route to the designated away market and receive an execution back. The first offsetting sell order will be handled in a similar manner. The second offsetting sell order will be executed at the Exchange itself, to ensure that the Exchange's systems are correctly distinguishing between routed and non-routed trades. To the extent that the offsetting trades require the Exchange to pay out funds, the funds will be provided out of the cash accounts of the Exchange; to the extent that the trades result in a profit, the funds will be deposited in the cash accounts of the Exchange.
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
BX 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.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Exchange believes that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest because it would allow the Exchange to conduct a limited test to assess the performance of its routing functionality and related systems prior to implementation and use by its members. The Exchange believes that a limited test prior to the launch of its routing functionality will assist the Exchange in uncovering and fixing any potential “bugs” so as to increase the likelihood of a successful implementation. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because such waiver would allow the Exchange to conduct a limited test without undue delay to ensure that its routing functionality and related systems are operating properly prior to implementation. Therefore, the Commission designates the proposal operative upon filing.
the proposed rule's impact on efficiency, competition, and capital formation.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rules 5.5 and 24.9 to increase the number of option classes on which Short Term Options Series (“Weekly options”) may be opened in the Exchange's Short Term Option Series Program (“Weeklys Program”) from 15 to 25 classes.
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to amend Rules 5.5 and 24.9 by increasing the number of option classes on which Weekly options may be opened in the Exchange's Weeklys Program.
CBOE notes that on September 19, 2011, it formally submitted a filing to the Commission to increase the number of strikes that may be listed per class that participates in the Weeklys Program. That filing was noticed by the Commission on September 30, 2011.
CBOE's Weeklys Program is codified in Rules 5.5 and 24.9. These rules provide that after an option class has been approved for listing and trading on the Exchange, the Exchange may open for trading on any Thursday or Friday that is a business day series of options on no more than fifteen option classes that expire on the Friday of the following business week that is a business day. In addition to the 15-option class limitation, there is a limitation on the number of series that may be opened per class.
The principal reason for the proposed expansion is market demand for adding, and not removing, Weekly option classes from the Weeklys Program. In order for the Exchange not to exceed the current 15-option class restriction, from time to time the Exchange has had to discontinue trading one short term option class before it could begin trading other option classes within the Weeklys Program. This has negatively impacted investors and traders, particularly retail public customers. These same market participants also repeatedly request that the Exchange add classes to the Weeklys Program, which the Exchange is unable to do as it has already reached its maximum allotment of 15 classes. The Exchange has also observed increased demand for more classes when market moving events, such as significant market volatility, corporate events, or large market, sector or individual issue price swings have occurred.
The Exchange notes that the Weeklys Program has been well-received by market participants, in particular by retail investors. The Exchange believes a modest increase to the number of classes that may participate in the Weeklys Program, such as the one proposed in this rule filing, will permit the Exchange to meet increased customer demand and provide market participants with the ability to hedge in a greater number of option classes.
With regard to the impact of this proposal on system capacity, the Exchange has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes that participate in the Weeklys Program.
The Exchange believes that the Weeklys Program has provided investors with greater trading opportunities and flexibility and the ability to more closely tailor their investment and risk management strategies and decisions. The Exchange further believes this proposed rule change will provide investors with additional Weekly option classes for investment, trading and risk management purposes. Therefore, the Exchange requests a modest expansion of the current Weeklys Program.
The proposed increase to the number of classes eligible to participate in the Weeklys Program is required for competitive purposes as well as to ensure consistency and uniformity among the competing options exchanges that have adopted similar Weeklys Programs.
The Exchange believes that the proposed rule change is consistent with Section 6(b)
CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the rule change is being proposed as a competitive response to proposed rule changes of ISE, NOM and PHLX. CBOE believes this proposed rule change is necessary to permit fair competition among the options exchanges with respect to their short term options programs.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the Rules of the Boston Options Exchange Group, LLC (“BOX”) to expand the Short Term Option Series Program.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Supplementary Material .07 to Chapter IV, Section 6 (Series of Options Open for Trading) and Supplementary Material .02 to Chapter XIV, Section 10 (Terms of Index Options Contracts) to expand the Short Term Option Series Program (“Weeklys Program”)
The Weeklys Program is codified in Supplementary Material .07 to Chapter IV, Section 6 and Supplementary Material .02 to Chapter XIV, Section 10. These rules state that after an option class has been approved for listing and trading on BOX, BOX may open for trading on any Thursday or Friday that is a business day series of options on no more than fifteen option classes that expire on the Friday of the following business week that is a business day. In addition to the fifteen-option class limitation, there is also a limitation that
The principal reason for the proposed expansion to the number of classes is customer demand for adding, or not removing, short term option classes from the Weeklys Program. BOX understands that other options exchanges, in order to not exceed the fifteen-option class restriction, from time to time, have had to discontinue trading one short term option class before beginning to trade other option classes within their Weeklys Program. BOX believes this has negatively impacted investors and traders, particularly retail public customers. BOX understands that market participants have also requested that other options exchanges add additional classes to the Weeklys Program. BOX notes that the Weeklys Program has been well received by market participants, in particular by retail investors. BOX believes a modest increase to the number of classes that may participate in the Weeklys Program, such as the one proposed herein, will permit the options exchanges to meet increased customer demand and provide market participants with the ability to hedge in a greater number of option classes.
The principal reason for the proposed expansion to the number of series is market demand for additional series in Weeklys Options classes in which the maximum number of series (20) has already been reached. Specifically, BOX has observed increased demand for more series when market moving events, such as corporate events and large price swings, have occurred during the life span of an affected Weeklys Program class. Currently, in order to be able to respond to market demand, BOX is forced to delete or delist certain series in order to make room for more in demand series.
First, BOX has received requests to keep series that it intends to delete/delist to make room for more in demand series. While market participants may access other markets for the deleted/delisted series, BOX would prefer that market participants trade these series at BOX. Second, this method can lead to competitive disadvantages among exchanges. If one exchange is actively responding to market demand by deleting/delisting and adding series, and another exchange is the last to list the less desirable series with open interest, this last exchange is stuck with those series and unable to list the in demand series (because to do so would result in more than 20 series being listed on that exchange). As a result, the maximum number of series per class of options that participates in the Program should be increased to 30 so that exchanges can list the full panoply of series that other exchange list and which the market demands.
To affect[sic] this change, the Exchange is proposing to amend the BOX rules to limit the initial number of series that may be opened for trading to 20 series and to limit the number of additional series that may be opened for trading to 10 series.
With regard to the impact of this proposal on system capacity, BOX has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with trading of an expanded number of classes and series in the Weeklys Program.
BOX believes that the Weeklys Program has provided investors with greater trading opportunities and flexibility and the ability to more closely tailor their investment and risk management strategies and decisions. BOX further believes this proposed rule change will provide investors with additional short term option classes and series for investment, trading, and risk management purposes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934
The Exchange does not believe that the proposed rule change will impose any burden on competition not
No written comments were either solicited or received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section
19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is substantially similar to that of another exchange that has been approved by the Commission.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 27, 2011, each of BATS Exchange, Inc. (“BATS”), BATS Y-Exchange, Inc. (“BYX”), NASDAQ OMX BX, Inc. (“BX”), Chicago Board Options Exchange, Incorporated (“CBOE”), C2 Options Exchange, Incorporated (“C2”), Chicago Stock Exchange, Inc. (“CHX”), EDGA Exchange, Inc (“EDGA”), EDGX Exchange, Inc. (“EDGX”), Financial Industry Regulatory Authority, Inc. (“FINRA”), International Securities Exchange LLC (“ISE”), The NASDAQ Stock Market LLC (“Nasdaq”), National Stock Exchange, Inc. (“NSX”), New York Stock Exchange LLC (“NYSE”), NYSE Amex LLC (“NYSE Amex”), NYSE Arca, Inc. (“NYSE Arca”), and NASDAQ OMX PHLX LLC (“Phlx”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on these proposed rule changes so that it has sufficient time to consider these proposed rule changes, which would revise the rules relating to trading halts due to extraordinary market volatility, and to consider the comment letters that have been submitted in connection with them.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Research and Innovative Technology Administration, U.S. Department of Transportation.
Notice.
The U.S. Department of Transportation (USDOT) Intelligent Transportation System Joint Program Office (ITS JPO) will host a free public webinar on December 9, 2011 from 1:00-3 p.m. (EST) to seek input on a set of high-level, alternative organizational structures for a certificate management entity (CME) to support a trusted and secure connected vehicle environment.
Persons planning to attend the webinar should register by December 5, 2011 using the following link:
The ITS JPO will present results from an early analysis of organizational models. This analysis will describe the functions that need to be performed by a CME; identify key constraints as well as institutional and policy requirements; model how those functions may be organized; and present a high level assessment of these organizational models against a set of evaluation criteria. Draft documentation of the analysis will be posted for comment at the following location on or before December 9, 2011 at:
Through 2014, the primary focus of the ITS JPO is a research initiative focused on developing rapid and secure wireless communications and trusted data exchanges among vehicles, roadside infrastructure, and passengers' personal communications devices. This innovative use of wireless communications provides the foundation for a connected environment for transportation that is intended to enable a multitude of applications to enhance surface transportation safety, mobility, and environmental performance.
In the end state, users need to have assurance that the system offers trusted and secure communications. That is the fundamental purpose of the Certificate Management System (or CME): To ensure that participants and their vehicles receive digital certificates that allow them to be trusted actors within the system and to access meaningful and trusted data that is generated by others. If trust in the communications breaks down, then trust in the overall connected environment erodes and users become reluctant to use it or rely on it. Trust can be violated in several ways:
•
•
•
The current study aims to analyze alternative operational models that describe potential organizational designs, institutional capabilities, and policies of a Certificate Management System. It also assesses the needs for operation, maintenance, and system enhancements over time. (This study is an institutional analysis only, not a technical analysis, and it is not intended to develop a system design.)
Federal Aviation Administration (FAA), DOT.
Notice of meeting.
The FAA is issuing this notice to advise the public of a meeting of the Executive Committee of the Aviation Rulemaking Advisory Committee.
The meeting will be held on December 14, 2011, at 10 a.m.
The meeting will take place at the Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, 10th floor, MacCracken Room.
Renee Butner, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591,
Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), we are giving notice of a meeting of the Executive Committee of the Aviation Rulemaking Advisory Committee taking place on December 14, 2011, at the Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591. The Agenda includes:
1. Rulemaking Prioritization Working Group (RPWG) recommendation report.
2. New ARAC task: Commercial Air Tour Voluntary Accreditation Program.
3. Status Report from FAA on ARAC Recommendations:
a. Process Improvement Working Group (PIWG).
b. Air Tour Maintenance (CATM).
c. Part 147.
4. Status Reports from Assistant Chairs.
5. Remarks from other EXCOM members.
The public must arrange by December 5 to present oral statements at the meeting. The public may present written statements to the executive committee by providing 25 copies to the Executive Director, or by bringing the copies to the meeting.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed under the heading
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 13, 2011.
You may send comments identified by Docket Number FAA-2011-1042 using any of the following methods:
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Mark Forseth, ANM-113, (425) 227-2796, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057-3356, Frances Shaver, ARM-207, (202) 267-4059, FAA, Office of Rulemaking, 800 Independence Ave SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of petition for determination of preemption; request for comments.
FMCSA requests comments on a petition submitted by the American Trucking Associations (ATA) requesting a determination that the State of Alabama's Metal Coil Securement Act is preempted by Federal law. FMCSA requests comments on what effect, if any, Alabama's metal coil load securement certification requirements may have on interstate commerce.
Comments are due on or before January 23, 2012.
You may submit comments identified by the Federal Docket Management System Number in the heading of this document by any of the following methods. To allow effective public participation before the comment deadlines, however, the Agency encourages use of the Web site that is listed first. It will provide the most efficient and timely method of receiving and processing your comments. Do not submit the same comments by more than one method.
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Genevieve D. Sapir, Office of the Chief Counsel, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-7056. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366-9826.
Alabama's Metal Coil Securement Act (the Act), enacted in 2009, prohibits a motor carrier from transporting metal coils in a movement that originates or terminates in Alabama unless the driver is certified in load securement (Ala. Code 32-9A-2(a)(4)a.). The law, as originally enacted, also required the driver to carry a copy of the certification in the vehicle and produce it upon demand (Ala. Code 32-9A-2(a)(4)b.). Maximum penalties for violating these requirements include fines of between $5,000 and $10,000, jail time and/or a court order prohibiting the driver from operating a commercial motor vehicle (CMV) in the State (Ala. Code 32-9A-4(d)—(g)). Alabama Promulgated Rule No. 760-X-1-.16, adopted on April 5, 2011, offers CMV drivers three options to become certified in load securement: (1) Obtain a Metal Coil Certificate by taking and passing the “Securing Metal Coils Course” available for $25.00 on the web site,
In June 2011, Alabama amended the Act, rescinding the requirement that drivers carry copies of their metal coil load securement certification in their vehicles. Currently, the Act continues to require drivers to obtain certification, as specified in Alabama Promulgated Rule No. 760-X-1-.16, but drivers are no longer required to produce the certification upon demand.
On June 26, 2009, FMCSA sent a letter to then-Governor Bob Riley of Alabama stating that the Act appeared to be incompatible with the requirements of FMCSA's Motor Carrier Safety Assistance Program. FMCSA also drew attention to two Federal laws authorizing preemption of State legislation (49 U.S.C. 14506 and 31141) and indicated that they might be applicable. The Agency urged State officials to work together with FMCSA officials to resolve any conflict between State and Federal law. Governor Riley responded on August 26, 2009, explaining that the Act was adopted in response to a number of accidents in Alabama involving the transport of metal coils. Governor Riley took the position that Alabama's metal coil load securement certification requirements were not preempted by Federal law.
On December 22, 2010, ATA petitioned FMCSA for a determination that Alabama's metal coil load securement certification requirements and penalties create an unreasonable burden on interstate commerce and are preempted under 49 U.S.C. 31141. ATA contends that Alabama's requirement that drivers obtain certification in metal coil load securement is more stringent than and incompatible with Federal metal coil safety regulations.
In its December 22, 2010 letter, ATA also requested a determination that the requirement that the driver carry the certification and display it upon
By letter dated January 25, 2011, the ADPS responded to ATA's petition. ADPS acknowledged that the requirements of the Act are more stringent than Federal regulations, but stated that the requirements should not be preempted because they have safety benefits and do not place an unreasonable burden on interstate commerce.
Section 31141 of title 49, United States Code, prohibits States from enforcing a law or regulation on CMV safety that the Secretary of Transportation (Secretary) has determined to be preempted. To determine whether a State law or regulation is preempted, the Secretary must decide whether a State law or regulation: (1) Has the same effect as a regulation prescribed under 49 U.S.C. 31136, which is the authority for much of the Federal Motor Carrier Safety Regulations (FMCSRs); (2) is less stringent than such a regulation; or (3) is additional to or more stringent than such a regulation (49 U.S.C. 31141(c)(1)). If the Secretary determines that a State law or regulation has the same effect as a regulation based on 31136, it may be enforced (49 U.S.C. 31141(c)(2)). A State law or regulation that is less stringent may not be enforced (49 U.S.C. 31141(c)(3)). And a State law or regulation the Secretary determines to be additional to or more stringent than a regulation based on 31136 may be enforced unless the Secretary decides that the State law or regulation (1) Has no safety benefit; (2) is incompatible with the regulation prescribed by the Secretary; or (3) would cause an unreasonable burden on interstate commerce (49 U.S.C. 31141(c)(4)). To determine whether a State law or regulation will cause an unreasonable burden on interstate commerce, the Secretary may consider the cumulative effect that the State's law or regulation and all similar laws and regulations of other States will have on interstate commerce (49 U.S.C. 31141(c)(5)). The Secretary's authority under 31141 is delegated to the FMCSA Administrator by 49 CFR 1.73(g).
Although preemption under 31141 is a legal determination reserved to the judgment of the Agency, FMCSA seeks comment on what effect, if any, Alabama's metal coil load securement certification requirement has on interstate motor carrier operations. Commenters are also encouraged to submit information on similar requirements imposed by States other than Alabama. In requesting comments, FMCSA does not seek legal conclusions. FMCSA also seeks information on the safety, economic, and operational effects, including cumulative effects, of Alabama's and other States' requirements. FMCSA requests commenters to limit their submissions to these issues and to submit data supporting their positions. The Agency has placed in the docket for inspection: FMCSA's June 26, 2009 letter, Governor Riley's August 26, 2009 reply, ATA's December 22, 2010 petition, ADPS's January 25, 2011 response, the Alabama Metal Securement Act, the ADPS April 5, 2011 rule implementing the Metal Coil Securement Act, and the June 2011 amendments to the Metal Coil Securement Act.
Federal Railroad Administration, (FRA), Department of Transportation (DOT).
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before December 23, 2011.
Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., 3rd Floor, Mail Stop 25, Washington, DC 20590 (telephone: (202) 493-6292), or Ms. Kimberly Toone, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., 3rd Floor, Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, Section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On September 8, 2011, FRA published a 60-day notice in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30 day notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d);
The summary below describes the nature of the information collection requirements (ICRs) and the expected burden being submitted for clearance by OMB as required by the PRA.
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the
44 U.S.C. 3501-3520.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the OCC, the Board, and the FDIC (the “agencies”) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies' publication for public comment of a proposal to extend, without revision, the Country Exposure Report (FFIEC 009) and the Country Exposure Information Report (FFIEC 009a), which are currently approved information collections. At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the FFIEC should modify the reports. The agencies will then submit the reports to OMB for review and approval.
Comments must be submitted on or before January 23, 2012.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number, will be shared among the agencies.
All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503, or by fax to (202) 395-6974.
Additional information or a copy of the collection may be requested from:
Proposal to extend for three years, without revision, the following currently approved collections of information:
These information collections are mandatory: 12 U.S.C. 161 and 1817 (national banks), 12 U.S.C. 248(a), 1844(c), and 3906 (state member banks and bank holding companies); and 12 U.S.C. 1817 and 1820 (insured state nonmember commercial and savings banks). The FFIEC 009 information collection is given confidential treatment (5 U.S.C. 552(b)(4) and (b)(8)). The FFIEC 009a information collection is not given confidential treatment.
The Country Exposure Report (FFIEC 009) is filed quarterly with the agencies and provides information on international claims of U.S. banks and bank holding companies that is used for supervisory and analytical purposes. The information is used to monitor country exposure of banks to determine the degree of risk in their portfolios and the possible impact on U.S. banks of adverse developments in particular countries. The Country Exposure Information Report (FFIEC 009a) is a supplement to the FFIEC 009 and provides publicly available information on material foreign country exposures (all exposures to a country in excess of 1 percent of total assets or 20 percent of capital, whichever is less) of U.S. banks and bank holding companies that file the FFIEC 009 report. As part of the Country Exposure Information Report, reporting institutions must also furnish a list of countries in which they have lending exposures above 0.75 percent of total assets or 15 percent of total capital, whichever is less.
The agencies are not planning any revisions at this time. However, the agencies expect to propose revisions in the near future, including potential changes to the Country Codes used in the FFIEC 009 report in order to more closely match the Country Codes on the Department of the Treasury's Treasury International Capital (TIC) reports (OMB Nos.: 1505-0016, 0017, 0018, 0019, 0020, and 0024).
Comments are invited on:
a. Whether the information collections are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
b. The accuracy of the agencies' estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this notice will be shared among the agencies. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
Financial Management Service, Fiscal Service, Treasury.
Notice.
Pursuant to Section 11 of the Debt Collection Act of 1982, as amended, (31 U.S.C. 3717), the Secretary of the Treasury is responsible for computing and publishing the percentage rate to be used in assessing interest charges for outstanding debts owed to the Government. Treasury's Cash Management Requirements (TFM Volume I, Part 6, Chapter 8000) prescribe use of this rate by agencies as a comparison point in evaluating the cost-effectiveness of a cash discount. In addition, 5 CFR 1315.8 of the Prompt Payment rule on “Rebates” requires that this rate be used in determining when agencies should pay purchase card invoices when the card issuer offers a rebate. Notice is hereby given that the applicable rate is 1.00 percent for calendar year 2012.
The rate will be in effect for the period beginning on January 1, 2012, and ending on December 31, 2012.
Inquiries should be directed to the Agency Enterprise Solutions Division, Financial Management Service, Department of the Treasury, 401 14th
The rate reflects the current value of funds to the Treasury for use in connection with Federal Cash Management systems and is based on investment rates set for purposes of Public Law 95-147, 91 Stat. 1227. Computed each year by averaging Treasury Tax and Loan (TT&L) investment rates for the 12-month period ending every September 30, rounded to the nearest whole percentage, for applicability effective each January 1, the rate is subject to quarterly revisions if the annual average, on a moving basis, changes by 2 percentage points. The rate in effect for the calendar year 2012 reflects the average investment rates for the 12-month period that ended September 30, 2011.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing on OFAC's list of Specially Designated Nationals and Blocked Persons the names of six newly-designated entities whose property and interests in property are blocked pursuant to Executive Order 13382 of June 28, 2005, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters.”
The designation by the Director of OFAC, pursuant to Executive Order 13382, of the six entities identified in this notice was effective on October 27, 2011.
Assistant Director, Sanctions Compliance & Evaluation,
This document and additional information concerning OFAC are available from OFAC's Web site (
On June 28, 2005, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in the Annex to the Order; (2) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and other relevant agencies, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by any person or foreign country of proliferation concern; (3) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to have provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, any activity or transaction described in clause (2) above or any person whose property and interests in property are blocked pursuant to the Order; and (4) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the Order.
On October 27, 2011, the Director of OFAC, in consultation with the Departments of State, Justice, and other relevant agencies, designated six entities whose property and interests in property are blocked pursuant to Executive Order 13382.
The list of additional designees is as follows:
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of one vessel identified as property blocked because of its connection to the Islamic Republic of Iran Shipping Lines (IRISL) and is updating the entries on OFAC's list of Specially Designated Nationals and Blocked Persons of 14 already-blocked vessels to identify new names and/or other information.
The identification and updates made by the Director of OFAC, pursuant to Executive Order 13382, of the 15 vessels in this notice was effective on October 27, 2011.
Assistant Director, Sanctions Compliance & Evaluation,
This document and additional information concerning OFAC are available from OFAC's Web site (
On June 28, 2005, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in the Annex to the Order; (2) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and other relevant agencies, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by any person or foreign country of proliferation concern; (3) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to have provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, any activity or transaction described in clause (2) above or any person whose property and interests in property are blocked pursuant to the Order; and (4) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the Order.
On October 27, 2011, the Director of OFAC identified one vessel as property of IRISL, and updated the entries on OFAC's list of Specially Designated Nationals and Blocked Persons of 14 already-blocked IRISL vessels to identify new names or other information given to those vessels. Banks are instructed to reject any funds transfer referencing a blocked vessel and must notify OFAC, via facsimile with a copy of the payment instructions that funds have been returned to the remitter due to the possible involvement of a SDN vessel in the underlying transaction.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing on OFAC's list of Specially Designated Nationals and Blocked Persons additional identifying information associated with Soroush Sarzamin Asatir Ship Management Company, an entity designated on June 16, 2010, pursuant to Executive Order 13382 of June 28, 2005, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters” and whose property and interests in property are therefore blocked.
The publication of additional identifying information for Soroush Sarzamin Asatir Ship Management Company by the Director of OFAC, pursuant to Executive Order 13382, was effective on October 27, 2011.
Assistant Director, Sanctions Compliance & Evaluation,
This document and additional information concerning OFAC are available from OFAC's web site (
On June 28, 2005, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in the Annex to the Order; (2) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and other relevant agencies, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by any person or foreign country of proliferation concern; (3) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to have provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, any activity or transaction described in clause (2) above or any person whose property and interests in property are blocked pursuant to the Order; and (4) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the Order.
On October 27, 2011, the Director of OFAC supplemented the identifying information for Soroush Sarzamin Asatir Ship Management Company, and entity designated on June 16, 2010, pursuant to the Order, and whose property and interest in property is therefore blocked.
The entry for Soroush Sarzamin Asatir Ship Management Company on OFAC's list of Specially Designated Nationals and Blocked Persons now reads as follows:
SOROUSH SARZAMIN ASATIR SHIP MANAGEMENT COMPANY (a.k.a. RAHBARAN OMID DARYA SHIP MANAGEMENT COMPANY), No. 5 Shabnam Alley, Golzar Street, Fajr Street, Shahid Motahari Avenue, Tehran 193651, Iran; P.O. Box 19365-1114, Tehran, Iran; Business Registration Document # 341563; alt. Business Registration Document # 5466371 issued 2009 [NPWMD]
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is removing from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) the names of 42 entities that are listed pursuant to Executive Order 13566 of February 25, 2011, “Blocking Property and Prohibiting Certain Transactions Related to Libya.”
The removal from the SDN List of the 42 entities identified in this notice is effective on November 18, 2011.
Assistant Director for Sanctions Compliance & Evaluation,
This document and additional information concerning OFAC are available from OFAC's Web site (
On February 25, 2011, the President issued Executive Order 13566, “Blocking Property and Prohibiting Certain Transactions Related to Libya” (“E.O. 13566”), pursuant to,
General License No. 8A authorizes
Accordingly, OFAC is removing from the SDN List the names of the following 42 entities with whom
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before January 23, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to R. Joseph Durbala, (202) 622-3634, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 2290/SP/FR Heavy Highway Vehicle Use Tax Return.
Written comments should be received on or before January 23, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3634, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing amendments to the national emissions standards for hazardous air pollutants for Ferroalloys Production to address the results of the residual risk and technology review that the EPA is required to conduct under the Clean Air Act. These proposed amendments include revisions to particulate matter standards for electric arc furnaces, metal oxygen refining processes, and crushing and screening operations. The amendments also add emission limits for hydrochloric acid, mercury, polycyclic aromatic hydrocarbons, and formaldehyde from electric arc furnaces. Furthermore, the amendments expand and revise the requirements to control fugitive emissions from furnace operations and casting. Other proposed requirements related to testing, monitoring, notification, recordkeeping, and reporting are included. We are also proposing to revise provisions addressing periods of startup, shutdown, and malfunction to ensure that the rules are consistent with a recent court decision.
Comments must be received on or before January 9, 2012. Under the Paperwork Reduction Act, comments on the information collection provisions are best assured of having full effect if the Office of Management and Budget (OMB) receives a copy of your comments on or before December 23, 2011.
Submit your comments, identified by Docket ID Number EPA-HQ-OAR-2010-0895, by one of the following methods:
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For questions about this proposed action, contact Mr. Conrad Chin, Sector Policies and Programs Division (D243-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone (919) 541-1512;
Several acronyms and terms used to describe industrial processes, data inventories, and risk modeling are included in this preamble. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined here:
Consistent with the recently issued Executive Order 13563, “Improving Regulation and Regulatory Review,” we have estimated the costs and benefits of the proposed rule. The estimated net benefits of the proposed rule at a 3 percent discount rate are $67 to $170 million or $59 to $150 million at a 7 percent discount rate. The monetized benefits in this analysis are due to PM
Under the proposed amendments, ferroalloys production facilities are expected to incur $11.4 million in capital costs to install new air pollution controls and new or improved monitoring systems. We have estimated the annualized costs to be $4.0 million, which includes estimated monitoring and testing costs. Section V.C of this preamble contains more detail on these estimated cost impacts.
Section 112 of the Clean Air Act (CAA) establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, after the EPA has identified categories of sources emitting one or more of the HAP listed in CAA section 112(b), CAA section 112(d) calls for us to promulgate national technology-based emission standards for hazardous air pollutants (NESHAP) for those sources. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. For major sources, these technology-based standards must reflect the maximum degree of emissions reductions of HAP achievable (after considering cost, energy requirements, and nonair quality health and environmental impacts) and are commonly referred to as maximum achievable control technology (MACT) standards.
MACT standards must require the maximum degree of emissions reduction achievable through the application of measures, processes, methods, systems, or techniques, including, but not limited to, measures that (1) Reduce the volume of or eliminate pollutants through process changes, substitution of materials or other modifications; (2) enclose systems or processes to eliminate emissions; (3) capture or treat pollutants when released from a process, stack, storage, or fugitive emissions point; (4) are design, equipment, work practice, or operational standards (including requirements for operator training or certification); or (5) are a combination of the above. CAA section 112(d)(2)(A)-(E). The MACT standards may take the form of design, equipment, work practice, or operational standards where the EPA first determines either that, (1) a pollutant cannot be emitted through a conveyance designed and constructed to emit or capture the pollutants, or that any requirement for, or use of, such a conveyance would be inconsistent with law; or (2) the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations. CAA sections 112(h)(1)-(2).
The MACT “floor” is the minimum control level allowed for MACT standards promulgated under CAA section 112(d)(3), and may not be based on cost considerations. For new sources, the MACT floor cannot be less stringent than the emissions control that is achieved in practice by the best-controlled similar source. The MACT floors for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emissions limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on considerations of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
The EPA is then required to review these technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, under CAA section 112(d)(6). In conducting this review, the EPA is not obliged to completely recalculate the prior MACT determination.
The second stage in standard-setting focuses on reducing any remaining (
CAA section 112(f)(2) requires us to determine for source categories subject to certain MACT standards, whether those emissions standards provide an ample margin of safety to protect public health. If the MACT standards for HAP “classified as a known, probable, or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than one in one million,” the EPA must promulgate residual risk standards for the source category (or subcategory), as necessary to provide an ample margin of safety to protect public health. In doing so, the EPA may adopt standards equal to existing MACT standards if the EPA determines that the existing standards are sufficiently protective.
Section 112(f)(2) of the CAA expressly preserves our use of the two-step process for developing standards to address any residual risk and our interpretation of “ample margin of safety” developed in the
The terms “individual most exposed,” “acceptable level” and “ample margin of safety” are not specifically defined in the CAA. However, CAA section 112(f)(2)(B) preserves the EPA's interpretation set out in the Benzene NESHAP, and the United States Court of Appeals for the District of Columbia Circuit in
In the Benzene NESHAP, we stated as an overall objective:
The Agency also stated that, “The EPA also considers incidence (the number of persons estimated to suffer cancer or other serious health effects as a result of exposure to a pollutant) to be an important measure of the health risk to the exposed population. Incidence measures the extent of health risks to the exposed population as a whole, by providing an estimate of the occurrence of cancer or other serious health effects in the exposed population.” The Agency went on to conclude that “estimated incidence would be weighed along with other health risk information in judging acceptability.” As explained more fully in our
In the Benzene NESHAP, we stated that “EPA will generally presume that if the risk to [the maximum exposed] individual is no higher than approximately one in 10 thousand, that risk level is considered acceptable.” 54 FR 38045. We discussed the maximum individual lifetime cancer risk (or maximum individual risk (MIR)) as being “the estimated risk that a person living near a plant would have if he or she were exposed to the maximum pollutant concentrations for 70 years.”
Understanding that there are both benefits and limitations to using maximum individual lifetime cancer risk as a metric for determining acceptability, we acknowledged in the 1989 Benzene NESHAP that “consideration of maximum individual risk * * * must take into account the strengths and weaknesses of this measure of risk.”
The Agency also explained in the 1989 Benzene NESHAP the following: “In establishing a presumption for MIR, rather than a rigid line for acceptability, the Agency intends to weigh it with a series of other health measures and factors. These include the overall incidence of cancer or other serious health effects within the exposed population, the numbers of persons exposed within each individual lifetime risk range and associated incidence within, typically, a 50-kilometer (km) exposure radius around facilities, the science policy assumptions and estimation uncertainties associated with the risk measures, weight of the scientific evidence for human health effects, other quantified or unquantified health effects, effects due to co-location of facilities, and co-emissions of pollutants.”
In some cases, these health measures and factors taken together may provide a more realistic description of the magnitude of risk in the exposed population than that provided by maximum individual lifetime cancer risk alone. As explained in the Benzene NESHAP, “[e]ven though the risks judged `acceptable' by EPA in the first step of the Vinyl Chloride inquiry are already low, the second step of the inquiry, determining an `ample margin of safety,' again includes consideration of all of the health factors, and whether to reduce the risks even further * * *. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including costs and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors. Considering all of these factors, the Agency will establish the standard at a level that provides an ample margin of safety to protect the public health as required by section 112.”
In
In the ample margin of safety decision process, the Agency again considers all of the health risks and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including costs and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors. Considering all of these factors, the Agency will establish the standard at a level that provides an ample margin of safety to protect the public health, as required by CAA section 112(f). 54 FR 38046.
As discussed in the previous section of this preamble, we apply a two-step process for developing standards to address residual risk. In the first step, the EPA determines if risks are acceptable. This determination “considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual lifetime [cancer] risk (MIR)
In past residual risk determinations, the EPA presented a number of human health risk metrics associated with emissions from the category under review, including: The MIR; the numbers of persons in various risk ranges; cancer incidence; the maximum noncancer hazard index (HI); and the maximum acute noncancer hazard. In estimating risks, the EPA considered sources under review that are located near each other and that affect the same population. The EPA developed risk estimates based on the actual emissions from the source category under review as well as based on the maximum emissions allowed pursuant to the source category MACT standard. The EPA also discussed and considered risk estimation uncertainties. The EPA is providing this same type of information in support of these actions.
The Agency acknowledges that the Benzene NESHAP provides flexibility regarding what factors the EPA might consider in making our determinations and how they might be weighed for each source category. In responding to comment on our policy under the Benzene NESHAP, the EPA explained that: “The policy chosen by the Administrator permits consideration of multiple measures of health risk. Not only can the MIR figure be considered, but also incidence, the presence of noncancer health effects, and the uncertainties of the risk estimates. In this way, the effect on the most exposed individuals can be reviewed as well as the impact on the general public. These factors can then be weighed in each individual case. This approach complies with the Vinyl Chloride mandate that the Administrator ascertain an acceptable level of risk to the public by employing [her] expertise to assess available data. It also complies with the Congressional intent behind the CAA, which did not exclude the use of any particular measure of public health risk from the EPA's consideration with respect to CAA section 112 regulations, and, thereby, implicitly permits consideration of any and all measures of health risk which the Administrator, in [her] judgment, believes are appropriate to determining what will `protect the public health.' ”
For example, the level of the MIR is only one factor to be weighed in determining acceptability of risks. The Benzene NESHAP explains “an MIR of approximately one in 10 thousand should ordinarily be the upper end of the range of acceptability. As risks increase above this benchmark, they become presumptively less acceptable under CAA section 112, and would be weighed with the other health risk measures and information in making an overall judgment on acceptability. Or, the Agency may find, in a particular case, that a risk that includes MIR less than the presumptively acceptable level is unacceptable in the light of other health risk factors.” Similarly, with regard to the ample margin of safety analysis, the Benzene NESHAP states that: “EPA believes the relative weight of the many factors that can be considered in selecting an ample margin of safety can only be determined for each specific source category. This occurs mainly because technological
The regulated industrial source category that is the subject of this proposal is listed in Table 3. Table 3 of this preamble is not intended to be exhaustive, but rather provides a guide for readers regarding the entities likely to be affected by this proposed action. The proposed standards, once finalized, will be directly applicable to affected sources. Federal, state, local, and tribal government entities are not affected by this proposed action. As defined in the MACT (major source) source category listing report published by the EPA in 1992, the “Ferroalloys Production” source category is any facility engaged in producing ferroalloys such as ferrosilicon, ferromanganese, and ferrochrome.
In addition to being available in the docket, an electronic copy of this proposal will also be available on the World Wide Web (WWW) through the EPA's Technology Transfer Network (TTN). Following signature by the EPA Administrator, a copy of this proposed action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address:
Additional information is available on the residual risk and technology review (RTR) Web page at:
The NESHAP (or MACT rule) for Ferroalloys Production: Ferromanganese and Silicomanganese was promulgated on May 20, 1999 (64 FR 27450) and codified at 40 CFR part 63, subpart XXX.
Today, there are two ferroalloys production facilities subject to the MACT rule. No greenfield manganese ferroalloys production facilities have been built in over 20 years, and we anticipate no greenfield manganese ferroalloys production facilities in the foreseeable future, although one facility is currently exploring expanding operations through the addition of a new furnace.
Ferroalloys are alloys of iron in which one or more chemical elements (such as chromium, manganese, and silicon) are added into molten metal. Ferroalloys are consumed primarily in iron and steel making and are used to produce steel and cast iron products with enhanced or special properties.
Ferroalloys within the scope of this source category are produced using submerged electric arc furnaces, which are furnaces in which the electrodes are submerged into the charge. The submerged arc process is a reduction smelting operation. The reactants consist of metallic ores (ferrous oxides, silicon oxides, manganese oxides, etc.) and a carbon-source reducing agent, usually in the form of coke, charcoal, high- and low-volatility coal, or wood chips. Raw materials are crushed and sized, and then conveyed to a mix house for weighing and blending. Conveyors, buckets, skip hoists, or cars transport the processed material to hoppers above the furnace. The mix is gravity-fed
HAP generating processes include electrometallurgical (furnace) operations (smelting and tapping), other furnace room operations (ladle treatment and casting), building fugitives, raw material handling and product handling. HAP are emitted from ferroalloys production as process emissions, process fugitive emissions, and outdoor fugitive dust emissions.
Process emissions are the exhaust gases from the control devices, primarily the furnace control device, metal oxygen refining control device and crushing operations control device. The HAP in process emissions are primarily composed of metals (mostly manganese, arsenic, nickel, lead, mercury and chromium) and also may include organic compounds that result from incomplete combustion of coal, coke or other fuel that is charged to the furnaces as a reducing agent. There are also process metal HAP emissions from the product crushing control devices. Process fugitive emissions occur at various points during the smelting process (such as during charging and tapping of furnaces and casting) and are assumed to be similar in composition to the process emissions. Outdoor fugitive dust emissions result from the entrainment of HAP in ambient air due to material handling, vehicle traffic, wind erosion from storage piles, and other various activities. Outdoor fugitive dust emissions are composed of particulate metal HAP only.
The MACT rule applies to process emissions from the submerged arc furnaces, the metal oxygen refining process, and the product crushing equipment, process fugitive emissions from the furnace and outdoor fugitive dust emissions sources such as roadways, yard areas, and outdoor material storage and transfer operations. For process sources, the NESHAP specifies numerical emissions limits for particulate matter (as a surrogate for non-mercury (or particulate) metal HAP) from the electric (submerged) arc furnaces (including smelting and tapping emissions), with the specific limits depending on furnace type, size, and product being made. Particulate matter emission limits (again as a surrogate for particulate metal HAP) are also in place for process emissions from the metal oxygen refining process and product crushing and screening equipment. Table 4 is a summary of the applicable limits.
The 1999 NESHAP established a building opacity limit of 20 percent that is measured during the required furnace control device performance test. The rule provides an excursion limit of 60 percent opacity for one 6-minute period during the performance test. The opacity observation is focused only on emissions exiting the shop due solely to operations of any affected submerged arc furnace. In addition, blowing taps, poling and oxygen lancing of the tap hole; burndowns associated with electrode measurements; and maintenance activities associated with submerged arc furnaces and casting operations are exempt from the opacity standards specified in § 63.1653.
For outdoor fugitive dust sources, as defined in § 63.1652, the 1999 NESHAP requires that plants prepare and operate according to an outdoor fugitive dust control plan that describes in detail the measures that will be put in place to control outdoor fugitive dust emissions from the individual outdoor fugitive dust sources at the facility. The owner or operator must submit a copy of the outdoor fugitive dust control plan to the designated permitting authority on or before the applicable compliance date.
In April 2010, we issued an information collection request (ICR), pursuant to CAA section 114, to the two companies that own and operate the two known ferroalloys production facilities producing ferromanganese and silicomanganese. The ICR requested available information regarding process equipment, control devices, point and fugitive emissions, practices used to control fugitive emissions, and other aspects of facility operations. The two companies completed the surveys for their facilities and submitted the responses to us in the fall of 2010. We also requested that the two facilities conduct additional emissions tests in 2010 for certain HAP from specific processes that were considered representative of the industry. Additional emissions testing was performed for most HAP metals (e.g., manganese, arsenic, chromium, lead, nickel and mercury), hydrochloric acid (HCl), formaldehyde, and PAH. The results of these tests were submitted to the EPA in the fall of 2010 and are available in the docket for this action.
During the development of this regulation we discovered other types of ferroalloys production facilities (e.g., non-manganese ferroalloy production) that are not subject to this NESHAP. We plan to gather additional information on these other types of sources, and then evaluate whether we need to establish MACT standards for these sources.
In addition to the emissions information and risk assessment described in this preamble, other sources of publicly available data exist. Based on historical emissions data from the EPA's Toxics Release Inventory, one of the manganese ferroalloys facilities in this source category
The Agency for Toxic Substances and Disease Registry (ATSDR), of the U.S. Department of Health and Human Services, along with the Ohio Department of Health and the Ohio Environmental Protection Agency conducted two health consultations in the communities surrounding this manganese ferroalloys facility between 2004 and 2007. The investigations found average ambient concentrations of manganese at levels higher than background concentrations and higher than health benchmark concentrations. More information about these studies can be found at
As a result of these findings, a health study of chronic adult exposure to ambient manganese in the communities surrounding the facility was funded by the EPA. Available results show no significant differences in blood manganese concentrations or major health outcomes between residents living near the facility and residents in a comparison town; however some subtle, subclinical motor (movement) differences were found in residents in the town with the facility.
In addition, under the EPA's School Air Toxics Initiative, ambient concentrations of manganese were monitored at three schools located near the ferroalloys production facility in late 2009. At these locations, mean manganese concentrations above the health benchmark value were observed. We note that the daily monitored values were in some cases above the RfC and in some cases below. The daily values were highly variable as they were likely influenced by wind direction and speed. More information about the health benchmark value is available in section III.B. More information on the School Air Toxics Initiative can be found at
In this section, we describe the analyses performed to support the proposed decisions for the RTR for this source category.
In the course of evaluating the Ferroalloys Production source category, we identified certain HAP for which we failed to establish emission standards in the original MACT. See
We were unaware of the potential for hydrochloric acid (HCl) emissions when we developed the 1999 NESHAP. As a result, we did not establish standards for HCl for these sources in the 1999 NESHAP. We recently received HCl emissions data in response to the ICR. Therefore, we are proposing a standard pursuant to section 112(d)(2) and (d)(3) (as described further in section IV.A of this preamble).
The 1999 NESHAP specified emissions limits for particulate metal HAP (
As described above, the 1999 NESHAP only regulated particulate metal HAP emissions and did not establish standards for PAH. Since then, we have determined that electric arc furnaces emit PAH, and we are proposing a standard pursuant to section 112(d)(2) and (d)(3) (as described further in section IV.A of this preamble).
As described above, the 1999 NESHAP only regulated particulate metal HAP emissions and did not establish standards for formaldehyde. Since then, we have determined that electric arc furnaces emit formaldehyde, and we are proposing a standard pursuant to section 112(d)(2) and (d)(3) (as described further in section IV.A of this preamble).
The EPA conducted a risk assessment that provided estimates of the MIR posed by the HAP emissions from each source in the source category, the HI for chronic exposures to HAP with the potential to cause noncancer health effects, and the hazard quotient (HQ) for acute exposures to HAP with the potential to cause noncancer health effects. The assessment also provided estimates of the distribution of cancer risks within the exposed populations, cancer incidence and an evaluation of the potential for adverse environmental effects for each source category. The risk assessment consisted of seven primary steps, as discussed below. The docket for this rulemaking contains the following document which provides more information on the risk assessment inputs and models:
The two existing ferromanganese and silicomanganese production facilities constitute the dataset that is the basis for the risk assessment. We estimated the magnitude of emissions using data collected through the ICR. In addition to the quality assurance (QA) of the source data for the facilities contained in the dataset, we also checked the coordinates of every emission source in the dataset through visual observations using tools such as GoogleEarth and ArcView. Where coordinates were found to be incorrect, we identified and corrected them to the extent possible. We also performed QA of the emissions data and release characteristics to ensure the data were reliable and that there were no outliers.
The emissions data in the MACT dataset include estimates of the mass of emissions actually emitted during the specified annual time period. These “actual” emission levels are often lower than the emission levels that a facility might be allowed to emit and still comply with the MACT standards. The emissions level allowed to be emitted by the MACT standards is referred to as the “MACT-allowable” emissions level. This represents the highest emissions level that could be emitted by facilities without violating the MACT standards.
We discussed the use of both MACT-allowable and actual emissions in the final Coke Oven Batteries residual risk rule (70 FR 19998-19999, April 15, 2005) and in the proposed and final Hazardous Organic NESHAP residual risk rules (71 FR 34428, June 14, 2006, and 71 FR 76609, December 21, 2006, respectively). In those previous actions, we noted that assessing the risks at the MACT-allowable level is inherently reasonable because these risks reflect the maximum level sources could emit and still comply with national emission standards. But we also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analysis, in accordance with the Benzene NESHAP. (54 FR 38044, September 14, 1989.)
For the Ferroalloys Production source category, we evaluated allowable stack emissions, based on the level of control required by the MACT standards compared to the level of reported actual emissions and available information on the level of control achieved by the emissions controls in use. Further explanation is provided in the technical document:
Both long-term and short-term inhalation exposure concentrations and health risks from the source category addressed in this proposal were estimated using the Human Exposure Model (Community and Sector HEM-3 version 1.1.0). The HEM-3 performs three of the primary risk assessment activities listed above: (1) Conducting dispersion modeling to estimate the concentrations of HAP in ambient air, (2) estimating long-term and short-term inhalation exposures to individuals residing within 50 km of the modeled sources, and (3) estimating individual and population-level inhalation risks using the exposure estimates and quantitative dose-response information.
The air dispersion model used by the HEM-3 model (AERMOD) is one of the EPA's preferred models for assessing pollutant concentrations from industrial facilities.
In developing the risk assessment for chronic exposures, we used the estimated annual average ambient air concentrations of each of the HAP emitted by each source for which we have emissions data in the source category. The air concentrations at each nearby census block centroid were used as a surrogate for the chronic inhalation exposure concentration for all the people who reside in that census block. We calculated the MIR for each facility as the cancer risk associated with a continuous lifetime (24 hours per day, 7 days per week, and 52 weeks per year for a 70-year period) exposure to the maximum concentration at the centroid of inhabited census blocks. Individual cancer risks were calculated by multiplying the estimated lifetime exposure to the ambient concentration of each of the HAP (in micrograms per cubic meter (μg/m
We also note that polycyclic organic matter (POM) (of which PAH are a subset), a carcinogenic HAP with a mutagenic mode of action, is emitted by the facilities in this source category.
Incremental individual lifetime cancer risks associated with emissions from the two facilities in the source category were estimated as the sum of the risks for each of the carcinogenic HAP (including those classified as carcinogenic to humans, likely to be carcinogenic to humans, and suggestive evidence of carcinogenic potential
To assess the risk of non-cancer health effects from chronic exposures, we summed the HQ for each of the HAP that affects a common target organ system to obtain the HI for that target organ system (or target organ-specific HI, TOSHI). The HQ is the estimated exposure divided by the chronic reference value, which is either the EPA reference concentration (RfC), defined as “an estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime,” or, in cases where an RfC from the EPA's IRIS database is not available, the EPA will utilize the following prioritized sources for our chronic dose-response values: (1) The Agency for Toxic Substances and Disease Registry Minimum Risk Level, which is defined as “an estimate of daily human exposure to a substance that is likely to be without an appreciable risk of adverse effects (other than cancer) over a specified duration of exposure”; (2) the CalEPA Chronic Reference Exposure Level (REL), which is defined as “the concentration level at or below which no adverse health effects are anticipated for a specified exposure duration”; and (3), as noted above, in cases where scientifically credible dose-response values have been developed in a manner consistent with the EPA guidelines and have undergone a peer review process similar to that used by the EPA, we may use those dose-response values in place of or in concert with other values.
Screening estimates of acute exposures and risks were also evaluated for each of the HAP at the point of highest off-site exposure for each facility (i.e., not just the census block centroids), assuming that a person is located at this spot at a time when both the peak (hourly) emission rate and worst-case dispersion conditions (1991 calendar year data) occur. The acute HQ is the estimated acute exposure divided by the acute dose-response value. In each case, acute HQ values were calculated using best available, short-term dose-response values. These acute dose-response values, which are described below, include the acute REL, acute exposure guideline levels (AEGL) and emergency response planning guidelines (ERPG) for 1-hour exposure durations. As discussed below, we used conservative assumptions for emission rates, meteorology and exposure location for our acute analysis.
As described in the CalEPA's Air Toxics Hot Spots Program Risk Assessment Guidelines, Part I, The Determination of Acute Reference Exposure Levels for Airborne Toxicants, an acute REL value (
AEGL values were derived in response to recommendations from the National Research Council (NRC). As described in
The AEGL-1 value is then specifically defined as “the airborne concentration of a substance above which it is predicted that the general population, including susceptible individuals, could experience notable discomfort, irritation, or certain asymptomatic nonsensory effects. However, the effects are not disabling and are transient and reversible upon cessation of exposure.” The document also notes (page 3) that, “Airborne concentrations below AEGL-1 represent exposure levels that can produce mild and progressively increasing but transient and nondisabling odor, taste, and sensory irritation or certain asymptomatic, nonsensory effects.” Similarly, the document defines AEGL-2 values as “the airborne concentration (expressed as parts per million or milligrams per cubic meter of a substance above which it is predicted that the general population, including susceptible individuals, could experience irreversible or other serious, long-lasting adverse health effects or an impaired ability to escape.”
ERPG values are derived for use in emergency response, as described in the American Industrial Hygiene Association's document entitled,
As can be seen from the definitions above, the AEGL and ERPG values include the similarly-defined severity levels 1 and 2. For many chemicals, a severity level 1 value AEGL or ERPG has not been developed because the types of effects for these chemicals are not consistent with the AEGL-1/ERPG-1 definitions; in these instances, higher severity level AEGL-2 or ERPG-2 values are compared to our modeled exposure levels to screen for potential acute concerns. When AEGL-1/ERPG-1 values are available, they are used in our acute risk assessments.
Acute REL values for 1-hour exposure durations are typically lower than their corresponding AEGL-1 and ERPG-1 values. Even though their definitions are slightly different, AEGL-1 values are often the same as the corresponding ERPG-1 values, and AEGL-2 values are often equal to ERPG-2 values. Maximum HQ values from our acute screening risk assessments typically result when basing them on the acute REL value for a particular pollutant. In cases where our maximum acute HQ value exceeds 1, we also report the HQ value based on the next highest acute dose-response value (usually the AEGL-1 and/or the ERPG-1 value).
To develop screening estimates of acute exposures in the absence of hourly emissions data, generally we first develop estimates of maximum hourly emissions rates by multiplying the average actual annual hourly emissions rates by a default factor to cover routinely variable emissions. For the Ferroalloys Production source category hourly emissions estimates were available for individual emissions points, so we did not use the default factor of 10. Using emission test data, hourly emission rates were developed for those processes considered to operate continuously (i.e., steady-state operations for 8,760 hours per year) and for those processes considered to operate intermittently (i.e., non-steady-state operations for less than 8,760 hours per year). A discussion of the hourly emissions estimates is provided in the
As part of our acute risk assessment process, for cases where acute HQ values from the screening step were less than or equal to 1, acute impacts were deemed negligible and no further analysis was performed. In cases where an acute HQ from the screening step was greater than 1, additional site-specific data were considered to develop a more refined estimate of the potential for acute impacts of concern. For this source category, the data refinements employed consisted of using the site-specific facility layout to distinguish facility property from an area where the public could be exposed. These refinements are discussed in the draft risk assessment document, which is available in the docket for this source category. Ideally, we would prefer to have continuous measurements over time to see how the emissions vary by each hour over an entire year. Having a frequency distribution of hourly emission rates over a year would allow us to perform a probabilistic analysis to estimate potential threshold exceedances and their frequency of occurrence. Such an evaluation could include a more complete statistical treatment of the key parameters and elements adopted in this screening analysis. However, we recognize that having this level of data is rare, hence our use of the multiplier approach.
To better characterize the potential health risks associated with estimated acute exposures to HAP, and in response to a key recommendation from the SAB's peer review of the EPA's RTR risk assessment methodologies,
The potential for significant human health risks due to exposures via routes other than inhalation (i.e., multipathway exposures) and the potential for adverse environmental impacts were evaluated in a two-step process. In the first step, we determined whether any facilities emitted any PB-HAP (HAP known to be persistent and bio-accumulative in the environment). There are 14 PB-HAP compounds or compound classes identified for this screening in the EPA's Air Toxics Risk Assessment Library (available at
Because one or more of these PB-HAP are emitted by at least one facility in the source category, we proceeded to the second step of the evaluation. In this step, we determined whether the facility-specific emission rates of each of the emitted PB-HAP were large enough to create the potential for significant non-inhalation human or environmental risks under reasonable worst-case conditions. To facilitate this step, we have developed emission rate thresholds for each PB-HAP using a hypothetical worst-case screening exposure scenario developed for use in conjunction with the EPA's Total Risk Integrated Methodology.Fate, Transport, and Ecological Exposure (TRIM.FaTE) model. The hypothetical screening scenario was subjected to a sensitivity analysis to ensure that its key design parameters were established such that environmental media concentrations were not underestimated (
In addition to assessing baseline inhalation risks and screening for potential multipathway risks, we also estimated risks considering the potential emissions reductions that would be achieved by the main control options
To put the source category risks in context, we typically examine the risks from the entire “facility,” where the facility includes all HAP-emitting operations within a contiguous area and under common control. In other words, we examine the HAP emissions not only from the source category of interest, but also emissions of HAP from all other emissions sources at the facility for which we have data. However, for the Ferroalloys Production source category, there are no other significant HAP emissions sources operating at present. Thus, there was no need to perform a separate facility wide risk assessment.
Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for the source category addressed in this proposal. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health-protective. A brief discussion of the uncertainties in the emissions dataset, dispersion modeling, inhalation exposure estimates and dose-response relationships follows below. A more thorough discussion of these uncertainties is included in the risk assessment documentation (
Although the development of the RTR dataset involved quality assurance/quality control processes, the accuracy of emissions values will vary depending on the source of the data, the degree to which data are incomplete or missing, the degree to which assumptions made to complete the datasets are accurate, errors were made in estimating emissions values and other factors. The emission estimates considered in this analysis generally are annual totals for certain years that do not reflect short-term fluctuations during the course of a year or variations from year to year.
The estimates of peak hourly emissions rates from stacks for the acute effects screening assessment were based on actual maximum hourly emissions estimates for individual emission points, which is intended to account for emissions fluctuations due to normal facility operations.
While the analysis employed the EPA's recommended regulatory dispersion model, AERMOD, we recognize that there is uncertainty in ambient concentration estimates associated with any model, including AERMOD. In circumstances where we had to choose between various model options, where possible, model options (
The effects of human mobility on exposures were not included in the assessment. Specifically, short-term mobility and long-term mobility between census blocks in the modeling domain were not considered.
In addition, the assessment predicted the chronic exposures at the centroid of each populated census block as surrogates for the exposure concentrations for all people living in that block. Using the census block centroid to predict chronic exposures tends to over-predict exposures for people in the census block who live farther from the facility and under-predict exposures for people in the census block who live closer to the facility. Thus, using the census block centroid to predict chronic exposures may lead to a potential understatement or overstatement of the true maximum impact, but is an unbiased estimate of average risk and incidence.
The assessment evaluates the cancer inhalation risks associated with pollutant exposures over a 70-year period, which is the assumed lifetime of an individual. In reality, both the length of time that modeled emissions sources at facilities actually operate (
The exposure estimates used in these analyses assume chronic exposures to ambient levels of pollutants. Because most people spend the majority of their time indoors, actual exposures may not be as high, depending on the characteristics of the pollutants modeled. For many of the HAP, indoor levels are roughly equivalent to ambient levels, but for very reactive pollutants or larger particles, these levels are typically lower. This factor has the potential to result in an overstatement of 25 to 30 percent of exposures.
In addition to the uncertainties highlighted above, there are several factors specific to the acute exposure assessment that should be highlighted. The accuracy of an acute inhalation exposure assessment depends on the simultaneous occurrence of
There are uncertainties inherent in the development of the dose-response values used in our risk assessments for cancer effects from chronic exposures and non-cancer effects from both chronic and acute exposures. Some uncertainties may be considered quantitatively, and others generally are expressed in qualitative terms. We note as a preface to this discussion a point on dose-response uncertainty that is brought out in the EPA's
Cancer URE values used in our risk assessments are those that have been developed to generally provide an upper bound estimate of risk. That is, they represent a “plausible upper limit to the true value of a quantity” (although this is usually not a true statistical confidence limit).
Chronic non-cancer reference (RfC) and reference dose (RfD) values represent chronic exposure levels that are intended to be health-protective levels. Specifically, these values provide an estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure (RfC) or a daily oral exposure (RfD) to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime. To derive values that are intended to be “without appreciable risk,” the methodology relies upon an uncertainty factor (UF) approach (U.S. EPA, 1993, 1994) which considers uncertainty, variability and gaps in the available data. The UF are applied to derive reference values that are intended to protect against appreciable risk of deleterious effects. The UF are commonly default values,
While collectively termed “UF,” these factors account for a number of different quantitative considerations when using observed animal (usually rodent) or human toxicity data in the development of the RfC. The UF are intended to account for: (1) Variation in susceptibility among the members of the human population (
Not all acute reference values are developed for the same purpose and care must be taken when interpreting the results of an acute assessment of human health effects relative to the reference value or values being exceeded. Where relevant to the estimated exposures, the lack of short-term dose-response values at different levels of severity should be factored into the risk characterization as potential uncertainties.
Although every effort is made to identify peer-reviewed reference values for cancer and noncancer effects for all pollutants emitted by the sources included in this assessment, some HAP continue to have no reference values for cancer or chronic noncancer or acute
Additionally, chronic reference values for several of the compounds included in this assessment are currently under the EPA IRIS review and revised assessments may determine that these pollutants are more or less potent than the current value. We may re-evaluate residual risks for the final rulemaking if these reviews are completed prior to our taking final action for this source category and a dose-response metric changes enough to indicate that the risk assessment supporting this notice may significantly understate human health risk.
We generally assume that when exposure levels are not anticipated to adversely affect human health, they also are not anticipated to adversely affect the environment. For each source category, we generally rely on the site-specific levels of PB-HAP emissions to determine whether a full assessment of the multipathway and environmental effects is necessary. Our screening methods use worst-case scenarios to determine whether multipathway impacts might be important. The results of such a process are biased high for the purpose of screening out potential impacts. Thus, when individual pollutants or facilities screen out, we are confident that the potential for multipathway impacts is negligible. On the other hand, when individual pollutants or facilities do not screen out, it does not mean that multipollutant impacts are significant, only that we cannot rule out that possibility.
In evaluating and developing standards under section 112(f)(2), as discussed in section I.B of this preamble, we apply a two-step process to address residual risk. In the first step, the EPA determines whether risks are acceptable. This determination “considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual lifetime [cancer] risk (MIR)
In past residual risk actions, the EPA has presented and considered a number of human health risk metrics associated with emissions from the category under review, including: the MIR; the numbers of persons in various risk ranges; cancer incidence; the maximum non-cancer HI; and the maximum acute non-cancer hazard (72 FR 25138, May 3, 2007; 71 FR 42724, July 27, 2006). In most recent proposals (75 FR 65068, October 21, 2010; 75 FR 80220, December 21, 2010; and 76 FR 29032, May 19, 2011), the EPA also presented and considered additional measures of health information, such as estimates of the risks associated with the maximum level of emissions which might be allowed by the current MACT standards (see,
The Agency is considering all available health information to inform our determinations of risk acceptability and ample margin of safety under CAA section 112(f). Specifically, as explained in the Benzene NESHAP, “the first step judgment on acceptability cannot be reduced to any single factor” and thus “[t]he Administrator believes that the acceptability of risk under [previous] section 112 is best judged on the basis of a broad set of health risk measures and information” (54 FR 38046). Similarly, with regard to making the ample margin of safety determination, as stated in the Benzene NESHAP “[in the ample margin decision, the Agency again considers all of the health risk and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including cost and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors.”
The Agency acknowledges that the Benzene NESHAP provides flexibility regarding what factors the EPA might consider in making determinations and how these factors might be weighed for each source category. In responding to comment on our policy under the Benzene NESHAP, the EPA explained that: “The policy chosen by the Administrator permits consideration of multiple measures of health risk. Not only can the MIR figure be considered, but also incidence, the presence of non-cancer health effects, and the uncertainties of the risk estimates. In this way, the effect on the most exposed individuals can be reviewed as well as the impact on the general public. These factors can then be weighed in each individual case. This approach complies with the Vinyl Chloride mandate that the Administrator ascertain an acceptable level of risk to the public by employing [her] expertise to assess available data. It also complies with the Congressional intent behind the CAA, which did not exclude the use of any particular measure of public health risk from the EPA's consideration with respect to CAA section 112 regulations, and, thereby, implicitly permits consideration of any and all measures of health risk which the Administrator, in [her] judgment, believes are appropriate to determining what will `protect the public health' ” (54 FR at 38057).
Thus, the level of the MIR is only one factor to be weighed in determining acceptability of risks. The Benzene NESHAP explained that “an MIR of approximately one in 10 thousand should ordinarily be the upper end of the range of acceptability. As risks increase above this benchmark, they become presumptively less acceptable under CAA section 112, and would be weighed with the other health risk measures and information in making an overall judgment on acceptability. Or, the Agency may find, in a particular case, that a risk that includes MIR less than the presumptively acceptable level is unacceptable in the light of other health risk factors” (
The EPA wishes to point out that certain health information has not been considered to date in making residual risk determinations. In assessing risks to populations in the vicinity of the facilities in each category, we present estimates of risk associated with HAP emissions from the source category alone (source category risk estimates), and generally we have also assessed risks due to HAP emissions from the entire facility at which the covered source category is located (facilitywide risk estimates). We have not, however, attempted to characterize the risks associated with all HAP emissions impacting the populations living near the sources in these categories. That is, at this time, we do not attempt to quantify those HAP risks that may be associated with emissions from other facilities that do not include the source categories in question, mobile source emissions, natural source emissions, persistent environmental pollution, or atmospheric transformation in the vicinity of the sources in these categories.
The Agency understands the potential importance of considering an individual's total exposure to HAP in addition to considering exposure to HAP emissions from the source category and facility. This is particularly important when assessing non-cancer risks, where pollutant-specific exposure health reference levels (
Although we are interested in placing source category and facilitywide HAP risks in the context of total HAP risks from all sources combined in the vicinity of each source, we are concerned about the uncertainties of doing so. At this point, we believe that such estimates of total HAP risks will have significantly greater associated uncertainties than for the source category or facilitywide estimates, and hence would compound the uncertainty in any such comparison. This is because we have not conducted a detailed technical review of HAP emissions data for source categories and facilities that have not previously undergone an RTR review or are not currently undergoing such review. We are requesting comment on whether and how best to estimate and evaluate total HAP exposure in our assessments, and, in particular, on whether and how it might be appropriate to use information from the EPA's NATA to support such estimates. We are also seeking comment on how best to consider various types and scales of risk estimates when making our acceptability and ample margin of safety determinations under CAA section 112(f).
Our technology review focused on the identification and evaluation of developments in practices, processes, and control technologies that have occurred since the 1999 NESHAP was promulgated. In cases where the technology review identified such developments, we conducted an analysis of the technical feasibility of applying these developments, along with the estimated impacts (costs, emissions reductions, risk reductions, etc.) of applying these developments. We then made decisions on whether it is necessary to propose amendments to the 1999 NESHAP to require any of the identified developments.
Based on our analyses of the data and information collected by the ICR and our general understanding of the industry and other available information on potential controls for this industry, we identified several potential developments in practices, processes, and control technologies. For the purpose of this exercise, we considered any of the following to be a “development”:
• Any add-on control technology or other equipment that was not identified and considered during development of the 1999 NESHAP.
• Any improvements in add-on control technology or other equipment (that were identified and considered during development of the 1999 NESHAP) that could result in significant additional emissions reduction.
• Any work practice or operational procedure that was not identified or considered during development of the 1999 NESHAP.
• Any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the 1999 NESHAP.
In addition to reviewing the practices, processes, or control technologies that were not considered at the time we developed the 1999 NESHAP, we reviewed a variety of data sources in our evaluation of whether there were additional practices, processes, or controls to consider for the Ferroalloys Production industry. Among the data sources we reviewed were the NESHAP for various industries that were promulgated after the 1999 NESHAP. We reviewed the regulatory requirements and/or technical analyses associated with these regulatory actions to identify any practices, processes, and control technologies considered in these efforts that could possibly be applied to emissions sources in the Ferroalloys Production source category, as well as the costs, non-air impacts, and energy implications associated with the use of these technologies.
Additionally, we requested information from facilities regarding developments in practices, processes, or control technology. Finally, we reviewed other information sources, such as State or local permitting agency databases and industry-supported databases.
In addition to the analyses described above, we also reviewed other aspects of the MACT standards for possible revision as appropriate and necessary. Based on this review we have identified aspects of the MACT standards that we believe need revision. This includes proposing revisions to the startup, shutdown, and malfunction (SSM) provisions of the MACT rule in order to ensure that they are consistent with a recent court decision in
This section of the preamble provides the results of our review of the MACT rule including the RTR for the Ferroalloys Production source category and our proposed decisions concerning changes to the 1999 NESHAP.
In this section, we describe how we addressed unregulated emissions, including how we calculate MACT floors, how we account for variability in those floor calculations, and how we consider beyond the floor options. As described previously, the CAA section 112(d) requires the EPA to promulgate national technology-based emission standards for hazardous air pollutants (NESHAP) for listed source categories, including this source category. For more information on this analysis, see the
Section 112(d)(3)(B) of the CAA requires that the MACT standards for existing sources be at least as stringent as the average emissions limitation achieved by the best performing five sources (for which the Administrator has or could reasonably obtain emissions information) in a category with fewer than 30 sources. The Ferroalloy Production source category consists of fewer than 30 sources. Where, as here, there are five or fewer sources, we base the MACT floor limit on the average emissions limitation achieved by those sources for which we have data.
The EPA must exercise its judgment, based on an evaluation of the relevant factors and available data, to determine the level of emissions control that has been achieved by the best performing sources under variable conditions. It is recognized in the case law that the EPA may consider variability in estimating the degree of emissions reduction achieved by best-performing sources and in setting MACT floors. See
With regard to data used to determine the MACT limits, we received detailed emissions data for multiple HAP from one furnace and one crushing system baghouse at each plant (collected at the outlet of the control device) based on an ICR sent to the two companies in 2010. We are soliciting additional emissions data for the operating furnaces and crushing system baghouses for which we do not have data and any other emissions sources at ferroalloys production facilities including available information on the quantity and composition of process fugitive emissions.
The raw materials used to produce ferroalloys contain various amounts of mercury, which is emitted during the smelting process. These mercury emissions are derived primarily from the manganese ore although there may be trace amounts in the coke or coal used in the smelting process. While some of the mercury that is in particulate or oxidized forms is captured by the particulate control devices, the more volatile elemental mercury is largely emitted to the atmosphere. We found that mercury emissions are emitted from the furnaces as measured during the ICR test program (estimated to be 540 pounds per year (lb/yr) at one plant and 140 lb/yr at the other plant). Pursuant to CAA section 112(d)(2) and 112(d)(3), we are proposing to revise the 1999 NESHAP to include emission limits for mercury.
As discussed above, the MACT floor limit is calculated based on the average performance of the units in each category plus an amount to account for these units' variability. To account for variability in the operation and emissions, the stack test data were used to calculate the average emissions and the 99 percent upper predictive limit (UPL) to derive the MACT floor limit. For more information on how we calculated the MACT floors and other emission limits, see the Ferroalloys Production MACT Floor Analysis document, which is available in the docket.
Using this method, the MACT floor (or 99 percent UPL) for exhaust mercury concentrations from existing furnaces is 80 µg/dscm at 2 percent carbon dioxide (CO
With regard to new sources, as described above, the MACT floor for new sources cannot be less stringent than the emissions performance that is achieved in practice by the best-controlled similar source. A variability analysis similar to that used for existing sources was then performed to calculate a 99 percent UPL using the three run test data from the top source. For this source category, we calculate that the UPL MACT floor limit for new sources is 16 µg/dscm at 2 percent CO
The next step in establishing MACT standards is the beyond the floor analysis. In this step, we investigate other mechanisms for further reducing HAP emissions that are more stringent than the MACT floor level of control in order to “require the maximum degree of reduction in emissions” of HAP. In setting such standards, section 112(d)(2) requires the Agency to consider the cost of achieving the additional emission reductions, any non-air quality health and environmental impacts, and energy requirements. Historically, these factors have included factors such as solid waste impacts of a control, effects of emissions on bodies of water, as well as the energy impacts.
As described below, we considered beyond-the-floor control options to further reduce emissions of mercury. Because of our limited data set, we considered setting a MACT limit for existing sources based on the performance of the best performing source (
In evaluating a beyond the floor option, we evaluate, among other things, the costs of achieving additional emission reductions beyond the floor level of control. No facilities in the source category use add-on control devices or work practices to limit mercury emissions beyond what is
In contrast, activated carbon injection has been used to control mercury emissions at various types of facilities that have large volumes of airflow including some coal-fired power plants, waste incinerators and cement kilns. Based on available information, activated carbon injection appears to be a technologically feasible control for mercury for these larger volume combustion sources. Mercury reductions of up to 90 or 95 percent have been reported at these other sources and should also be achievable at ferroalloys production facilities. Based on data and information on these mercury controls for other combustion sources (such as utility boilers, incinerators and cement kilns), and based on our experience with these controls, we conclude that activated carbon injection is a viable control technology for the Ferroalloys Production source category.
Activated carbon injection can be installed upstream or downstream of an existing particulate matter control device. In cases where a source is concerned about potential impacts of waste carbon on the source's waste stream and resulting disposal options or the ability to sell or reuse baghouse dust, the source can install the activated carbon injection downstream of the particulate matter control device with a separate polishing baghouse to collect the carbon. In other cases, the source can install the activated carbon injection upstream of the particulate matter control device and use the existing particulate control device to remove the carbon from the airstream.
We reviewed facility specific control options that included putting the mercury controls downstream of the existing furnace baghouse to avoid the potential issues with sale or reuse of baghouse dust associated with upstream controls. Under this scenario, the activated carbon injection system would be followed by a “polishing” baghouse to capture the activated carbon for disposal. In the case of the existing furnace scrubber, we assumed the source could put the activated carbon injection system upstream of the scrubber, the carbon would be captured by the scrubber and the resulting sludge treated according to the existing treatment process at the plant. Based on discussion
We estimate that under this beyond the floor option described above (
It is important to note that there is no bright line for determining cost-effectiveness. Each rulemaking is different and various factors must be considered. Nevertheless, the cost-effectiveness of mercury controls in this proposed rule for Ferroalloys Production is near the lower end of the range. Some of the factors we consider in determining the costs of control technologies under section 112(d)(2) include, but are not limited to the following: total capital costs; annual costs; and costs compared to total revenues (
We are requesting comment on the proposed standard of 16 µg/dscm for mercury. We also seek comments and information on our conclusion that activated carbon injection technology to meet the mercury emissions limit for this source category is technically and economically feasible. Moreover, we seek comments on the factors related to costs and economics (such as those described in the paragraph above) regarding the feasibility and costs of activated carbon injection for this industry. We also seek comments on other possible controls that could be effective to reduce mercury emissions beyond the floor, including the amount and cost of the resulting emissions reductions. Furthermore, we seek comment on whether work practices to minimize mercury emissions, such as switching to manganese ores with low mercury content, could be technically and economically feasible.
Moreover, we request comment on whether there is a basis to subcategorize manganese production operations for mercury. For example, is there a basis on which to subcategorize ferromanganese production and silicomanganese production processes? Although we are requesting comment on subcategorization, we do not believe that subcategorization would have any substantive effect on the resulting standards or the costs of controls since
We are proposing that any source installing activated carbon injection would be required to continuously monitor the carbon injection rate into the airstream being controlled. We request comment on the level of variability in the carbon injection rate that should be allowed, and what percent decrease in the rate should be considered significant.
We also propose that sources monitor the mercury content in the manganese ore. Specifically, we propose that the determination of a significant increase in mercury content would be that the 12-month rolling weighted average mercury concentration based on monthly sampling in the manganese ore increases by 10 percent or more compared to the baseline weighted average mercury concentration. If that limit is exceeded, the source would be required to readjust the carbon injection rate as specified in the source's monitoring plan or retest within 30 days if there is not a dedicated mercury control device. If a new ore is added, sampling would be required as well.
We request comment on this ore monitoring provision. We are especially interested in any data that would show the variability in mercury concentration between different ore samples from the same location and the variability of the types of ores used in manganese production. If ore type and mercury content are demonstrated to be stable, we might consider reducing the frequency of sampling/calculations to quarterly or less.
PAH emissions are products of incomplete combustion from the smelting operation, and a subset of the listed HAP POM. Some of these emissions are likely to be in particulate form, but a significant portion is expected to be in a gaseous form. Therefore, the existing particulate matter control devices only achieve partial control of these compounds. No existing facilities in the source category control PAH or use work practices to limit emissions of PAH emissions specifically. However, under today's proposal, these pollutants would be controlled with the same activated carbon injection technology as mercury. Because of this, emission reductions could be achieved via co-control at no additional costs. Pursuant to CAA section 112(d)(2) and 112(d)(3), we are proposing to revise the 1999 NESHAP to include an emission limit for PAH.
We have stack test data from only one furnace for PAH emissions. As such, the MACT floor would be based on the performance level achieved at that furnace (
Therefore, pursuant to CAA sections 112(d)(2) and (d)(3), we are proposing to revise the 1999 NESHAP to include an emission limit for PAH of 89 µg/dscm for new and existing sources.
Hydrochloric acid (HCl) is a product of combustion, and the level of emissions is dictated by the chlorine content of the coal or coke used as a reducing agent in the smelting process. Based on test data from the ICR, we estimate that the two facilities in this source category emit 6 to 11 tpy of HCl. While these levels of emissions are nontrivial, they are relatively low compared to some other types of combustion sources. The primary reason for this is that manganese producers use coke instead of coal as the primary reducing agent in the smelting operation. Because coke is a refined product, much of the original chlorine content in the coal is removed in the coking process, which greatly reduces potential emissions. Second, one of the five furnaces at these plants is equipped with a scrubber, which provides co-control of particulate matter and HCl emissions. Notwithstanding the relatively low HCl emissions from facilities in this source category, section 112(d) requires us to set MACT for HAP emitted from the source category. Pursuant to CAA section 112(d)(2) and 112(d)(3), we are proposing to revise the 1999 NESHAP to include emission limits for HCl.
As discussed above, the MACT floor limit is calculated based on the average performance of the units in each category plus an amount to account for these units' variability. To account for variability in the operation and emissions, the stack test data were used to calculate the average emissions and the 99 percent UPL to derive the MACT floor limit. However, a number (50 percent) of the individual data points were reported as below the applicable test detection limits.
Test method measurement imprecision is a contributor to the variability of a set of emissions data. One element is associated with method detection capabilities and a second is a function of the measurement value. Measurement imprecision is proportionally highest for values measured below or near a method's detection level and proportionally lower for values measured above the method detection level.
The probability procedures applied in calculating the MACT floor or beyond the floor emissions limit inherently and reasonably account for emissions data variability including measurement imprecision when the database represents multiple tests from multiple emissions units for which all of the data are measured significantly above the method detection level. This is less true when the database includes some emissions occurring below method detection capabilities that are reported as the method detection level values.
The EPA's guidance to facilities for reporting pollutant emissions in response to the ICR data collection specified the criteria for determining test-specific method detection levels. Those criteria ensure that there is only about a 1 percent probability of an error in deciding that the pollutant measured at the method detection level is present when in fact it was absent. Such a probability is also called a false positive or an alpha, Type I, error. Because of sample and emissions matrix effects, laboratory techniques, sample size, and other factors, method detection levels normally vary from test to test for any specific test method and pollutant measurement. The expected
Also in accordance with our guidance, source owners identified emissions data which were measured below the method detection level and reported those values as equal to the method detection level as determined for that test. An effect of reporting data in this manner is that the resulting database is somewhat truncated at the lower end of the measurement range (
We applied the following procedures to account for the effect of measurement imprecision associated with a database that includes method detection level data. The following process also addresses the concerns associated with use of a small data set, such as the Ferroalloys Production data set for HCl. As a first step, we reviewed an HCl emissions data set for the industrial boilers rule, which represents several hundred emissions tests used in the floor calculations (
The second step in the process was to calculate three times the RDL and compare that value to the calculated MACT floor or beyond the floor emissions limit. We use the multiplication factor of three to approximate a 99 percent upper confidence interval for a data set of seven or more values. If three times the RDL was less than the calculated MACT floor emissions limit calculated from the UPL, we would conclude that measurement variability was adequately addressed. The calculated MACT floor or beyond the floor emissions limit would need no adjustment. If, on the other hand, the value equal to three times the RDL was greater than the UPL, we would conclude that the calculated MACT floor or beyond the floor emissions limit does not account entirely for measurement variability. If indicated, we substituted the value equal to three times the RDL to apply as the adjusted MACT floor or beyond the floor emissions limit. This adjusted value would ensure measurement variability is adequately addressed in the MACT floor or the beyond the floor emissions limit.
For HCl, three times the RDL was less than the calculated 99 percent UPL for exhaust HCl concentration from existing furnaces. Thus, for existing sources, the MACT floor for HCl is set at the UPL, or 809 µg/dscm corrected to 2 percent CO
Consistent with CAA section 112(d)(3), the MACT floor for new sources cannot be less stringent than the emissions control that is achieved in practice by the best-controlled similar source. The 99 percent UPL calculated for HCl based on the best performing source is less stringent than the MACT floor for HCl at existing furnaces. We determined that the use of the best performing source UPL is not appropriate in this situation because the high variability and small data pool would result in a new source MACT floor limit that is less stringent than the limit based on the UPL calculated from the larger data pool for existing sources. Given that the 99 percent UPL for new sources is higher than the 99 percent UPL for existing sources, we determined that the MACT limit for new sources should be equal to the MACT limit for existing sources.
We then considered a beyond-the-floor option to further reduce emissions of HCl at existing sources based on application of additional add-on control devices, such as lime injection, but their use is not indicated given the high costs of installing and operating such controls. There is also concern that use of this technology could prevent the current practice of reusing or selling baghouse dust and the resulting waste reduction benefits. See the Draft MACT Floor Analysis for the Ferroalloys Production Source Category in the docket for more discussion of this topic.
Therefore, pursuant to CAA sections 112(d)(2) and 112(d)(3), we are proposing to revise the 1999 NESHAP to include emission limits for new and existing sources for HCl of 809 µg/dscm. At this level, we do not anticipate that either source would be required to install controls to meet the limits. For more information on how these limits were derived, see the Draft MACT Floor Analysis for the Ferroalloys Production Source Category. As described above, there are some measurements (
Formaldehyde emissions are also products of incomplete combustion from the smelting operation. Based on test data from the ICR, we estimate that the two facilities in this source category emit approximately 2 tpy of formaldehyde. Pursuant to CAA section 112(d)(2) and 112(d)(3), we are proposing to revise the 1999 NESHAP to include emission limits for formaldehyde.
The measured average formaldehyde emissions ranged from 57 to 78 µg/dscm corrected to 2 percent CO
Due to the high variability in the data pool, the 99 percent UPL for the best-performing source is less stringent than the existing source MACT floor. Therefore, pursuant to CAA section 112(d)(2) and 112(d)(3), we are proposing to revise the 1999 NESHAP to include an emission limit for formaldehyde for new and existing sources of 201 µg/dscm based on the MACT floor calculation. We have not identified any appropriate beyond-the-floor control technology options specifically for formaldehyde. We recognize the potential for some co-control of formaldehyde emissions that would be achieved by using activated carbon injection to control mercury emissions, but we were unable to quantify those reductions. More information regarding how the MACT limits were calculated and the costs is provided in Ferroalloys Production MACT Floor and Cost Memos, which are available in the docket for this rulemaking. Finally, because of the potential uncertainty in basing a limit partially on non-detect values, we considered the possibility of proposing work practice standards. We request comment on whether there are any work practices that might be appropriate.
As described above, for the Ferroalloys Production source category, we conducted an inhalation risk assessment for all HAP emitted. We also conducted multipathway screening analyses for mercury and POM. Details of the risk assessment and additional analyses can be found in the residual risk documentation referenced in section III.B of this preamble, which is available in the docket for this action. The Agency considered the available health information—the MIR; the numbers of persons in various risk ranges; cancer incidence; the maximum non-cancer HI; the maximum worst-case acute non-cancer HQ; the extent of non-cancer risks; the potential for adverse environmental effects; and distribution of risks in the exposed population (54 FR 38044, September 14, 1989) in developing the proposed CAA section 112(f)(2) standards for the Ferroalloys Production source category.
Table 5 of this preamble provides an overall summary of the results of the inhalation risk assessment.
The results of the chronic baseline inhalation cancer risk assessment indicate that, based on estimates of current actual emissions, the current maximum individual lifetime cancer risk posed by these two facilities could be up to 80 in one million (50 in one million with the lower nickel URE value), with process fugitive emissions (from the furnace, crushing operation, and casting) of nickel, chromium and arsenic as major contributors to the risk. The total estimated cancer incidence from this source category based on actual emission levels is 0.002 excess cancer cases per year or one case in every 500 years, with emissions of nickel, chromium and arsenic contributing 36 percent, 24 percent and 24 percent respectively, to this cancer incidence. In addition, we note that approximately 1,100 people are estimated to have cancer risks greater than 10 in one million, and approximately 26,000 people are estimated to have risks greater than one in one million as a result of emissions from these two facilities. When considering the risks associated with MACT-allowable emissions, both facilities have allowable risks of 100 in one million, driven by nickel, chromium VI, and arsenic at one facility (which would have an allowable cancer risk of 70 in one million when using the lower nickel URE value) and chromium VI and arsenic at the other facility (which would have an allowable cancer risk of 100 in one million when using the lower nickel URE value).
The maximum modeled chronic non-cancer TOSHI value for the source category based on actual emissions could be up to 90 with emissions of manganese from process fugitives contributing greater than 90 percent of those impacts. A TOSHI of 90 means that the modeled long-term average air concentration of manganese at that location is about 4.5 µg/m
Our screening analysis for worst-case acute impacts indicates the potential for two pollutants, nickel and arsenic, to exceed an HQ value of 1, with a potential maximum HQ up to 10 for nickel and 9 for arsenic based on acute REL values for each substance. There
The PB-HAP emitted by facilities in this category include mercury, POM (as benzo(a)pyrene toxicity equivalents, or TEQ), and lead. To identify potential multipathway health risks from PB-HAP other than lead, we first performed a screening analysis that compared emissions of other PB-HAP emitted from the Ferroalloys Production source category to emission threshold values. The two facilities in the source category reported emissions of mercury and POM, and both of them had baseline emission rates greater than the screening emission threshold values for the pollutants indicating that there may be potential multipathway impacts of concern due to emissions of these pollutants from these two facilities.
Since the two PB-HAP did not screen out during our initial screening analysis, we refined our analysis somewhat with some additional site-specific information to develop an “intermediate screen,” which is a more realistic analysis but still considered a screening analysis. (See Appendix 5 of the Risk Assessment document in the docket for more information about this intermediate screen.) The additional site-specific information included land use around the facilities, the location of fishable lakes, and local wind direction and speed. The result of this analysis was the development of site-specific emission screening thresholds for POM and mercury. Based on this intermediate screening analysis, neither facility screened out, meaning that we cannot rule out the potential for multipathway impacts of concern due to emissions of these pollutants from these two facilities. We were unable to obtain the data necessary to conduct a fully refined assessment of multipathway risks from these two facilities.
In evaluating the potential for multipathway effects from emissions of lead, modeled maximum annual lead concentrations were compared to the National Ambient Air Quality Standards (NAAQS) for lead (0.15 µg/m
For both facilities in this source category, there are no other significant HAP emissions sources present beyond those included in the source category. All significant HAP sources have been included in the source category risk analysis. Therefore, we conclude that the facilitywide risk is essentially the same as the source category risk and that no separate facilitywide analysis is necessary.
As noted in section III.C of this preamble, we weigh all health risk factors in our risk acceptability determination, including the MIR; the number of persons in various cancer and noncancer risk ranges; cancer incidence; the maximum noncancer HI; the maximum acute noncancer HQ; the extent of noncancer risks; the potential for adverse environmental effects; distribution of cancer and noncancer risks in the exposed population; and risk estimation uncertainty (54 FR 38044, September 14, 1989).
Based on the baseline inhalation risk assessment, we estimate that the cancer risks to the individual most exposed could be up to 80 in one million (50 in one million when using the lower nickel URE value) due to actual emissions of arsenic, chromium and nickel from process fugitives and up to 100 in one million due to MACT-allowable emissions, mainly due to chromium, arsenic and nickel stack emissions. (There is no change in the allowable cancer risk estimate when using the lower nickel URE value.) We estimate that the incidence of cancer based on actual emissions is 0.002 excess cancer cases per year, or 1 case every 500 years, and that about 26,000 people face a cancer risk greater than one in one million due to HAP emissions from this source category. The chronic noncancer TOSHI could be up to 90 due to actual emissions of manganese from process fugitives and up to 200 due to MACT-allowable emissions of manganese from process fugitives. We estimate that about 28,000 people face a TOSHI level greater than 1 and approximately 30 people face a TOSHI greater than 10 due to emissions from this source category.
With respect to potential acute non-cancer health risks, we estimate that, based on our refined analysis, the worst-case HQ value could exceed an HQ value of 1 for two pollutants, nickel and arsenic, with a potential maximum HQ up to 10 for nickel and 9 for arsenic. This indicates a potential acute concern relative to the baseline emissions of these two pollutants based on the REL. In characterizing the potential for acute noncancer impacts of concern, it is important to remember the upward bias of these exposure estimates and to consider the results along with the uncertainties related to the emissions estimates and screening methodology. In the case of ferroalloys, the acute emissions estimates were based on actual data from the ICR (
The risk assessment for this source category was based on facility-specific stack-test data and emissions estimates, giving us a generally high degree of confidence in the results. We applied the two-step analysis set out in the Benzene NESHAP to assess emissions from this source category. Considering all of the above information, we are proposing that the risks are
The proposed determination that risks are unacceptable for this source category is primarily based on the fact that the maximum chronic noncancer HI values (90 based on actual emissions, 200 based on allowable, both dominated by manganese emissions) are higher than 1 (an HI exposure level of 1 is generally considered to be without appreciable risk of adverse health effects). The fact that 28,000 people are estimated to have exposures greater than an HI of 1 (based on actual emissions) also weighs in this proposed determination. The fact that maximum individual cancer risks are above 1 in a million also contributes to our determination of unacceptability, but to a lesser extent. While the estimated maximum individual cancer risks would, by themselves, not generally lead us to a determination that risks are unacceptable, the fact that they occur along with the chronic noncancer TOSHI greater than 1 (approximately 28,000 people are exposed to TOSHI levels above 1 and approximately 30 people are exposed to a TOSHI greater than 10) adds to our concern about these exposures, and further supports our proposed determination that risks are unacceptable. The total estimated cancer incidence (0.002 cases per year) is not very high, and this fact did not weigh significantly in our proposed determination of unacceptable risk. However, in the past EPA has weighed an estimated cancer incidence of 0.002 cases per year heavily in a determination of acceptable risk. EPA notes that there were no non-cancer concerns in these previous instances. We further note that, while our screening for potential acute and multi-pathway impacts of concern from the 2 sources in the category did identify some potential concerns for a few HAPs, these screening results did not weigh heavily in our proposed determination that risks are unacceptable.
Given that chronic noncancer risks associated with manganese emissions are the primary determinant of unacceptable risks, we provide here a brief discussion of the EPA's RfC associated with the inhalation of manganese and our confidence in the principal studies supporting the development of that RfC for context. The RfC is the level below which there is not likely to be appreciable risk of deleterious effects; however, the EPA cannot state at what exposure level there will be an appreciable risk of deleterious effects. In the case of manganese, the effect of concern was a decrease in visual reaction time in adults who were occupationally exposed to manganese. The effects were seen at a dose adjusted value of 0.05 mg/m
Overall confidence in the principal studies (Roels
Confidence in the database on manganese health effects is “medium”. The duration of exposure was relatively limited and the workers were relatively young in all of the principal and supporting studies. These temporal limitations raise concerns that longer durations of exposure and/or interactions with aging might result in the detection of effects at lower concentrations, as suggested by results from other studies. In addition, the studies, with the exception of the 1992 Roels
As noted in the 1989 Benzene NESHAP, the Agency weighs multiple risk factors in making a determination of acceptable or unacceptable risk, and notes that acceptability cannot be reduced to any single factor. In applying the balancing factors to this action, EPA considered a wide range of data including the MIR; the number of persons in various cancer and noncancer risk ranges; cancer incidence; the maximum noncancer HI; the maximum acute noncancer HQ; the extent of noncancer risks; the potential for adverse environmental effects; distribution of cancer and noncancer risks in the exposed population; and risk estimation uncertainty (54 FR 38044, September 14, 1989).
In summary, the MIR was 80 in a million based on actual emissions and 100 in one million based on allowable emissions; the total estimated cancer incidence was 0.002 cases per year (or 1 case in every 500 years); and approximately 30 people could be exposed at a TOSHI greater than 10 while approximately 28,000 could be exposed at a TOSHI greater than 1. Since the RfC is 1000 fold below the lowest level at which neurological effects were seen, the maximum TOSHI of 90 (or 200 for allowable risks) is still below the effect level used to derive the RfC and there is uncertainty as to exactly what level of exposure above the RfC will lead to appreciable risk of adverse effects. The population from which the effect level was derived was an adult male worker population, and that this population does not necessarily represent the general population. We note that the concentration reflected in the maximum TOSHI of 90 (0.0045 mg/m
Based on our assessment of the information, we are proposing that the risks are unacceptable. We solicit comment on all aspects of this proposed determination. Specifically, we solicit any information (and supporting data) that would further inform our proposed decision.
We also solicit comment on whether an alternative balancing of all the same factors including the weights afforded to individual factors discussed above and their associated uncertainties could lead to a different decision regarding risks. EPA also solicits any information (and supporting data) that would further inform this alternative approach.
Under the two-step Benzene NESHAP approach, we are required under CAA section 112(f)(2)(A) to make a determination as to what controls are needed to achieve an ample margin of safety for the source category after we make a determination on risk acceptability. The discussion of the controls needed to achieve an ample margin of safety in section IV.C.3 addresses both what would be needed if we find risks are unacceptable as well as what would be needed if we find that risks are acceptable.
We conducted an assessment to estimate the risks from the two facilities in the source category based on a post-control scenario reflecting the proposed requirements described above to address unregulated HAP (section IV.A) and the proposed controls described below. Details are provided in the Draft Risk Assessment report which is available in the docket for this action.
In order to ensure that the risks associated with this source category are acceptable, we evaluated the potential to reduce MACT-allowable stack emissions, which had driven the cancer MIR based on allowable emissions to 100 in a million, primarily due to allowable stack emissions of arsenic, nickel and chromium, and contributed significantly to the chronic noncancer TOSHI (based on allowable emissions) of 200, primarily due to allowable stack emissions of manganese. Our analysis determined that we could lower the existing particulate matter emission limits by approximately 50 percent for furnace stack emissions, by 80 percent for crushing and screening stack emissions and by 98 percent for the metal oxygen refining process. After the implementation of these tighter PM stack limits, the estimated cancer MIR for the source category based on allowable emissions would become 80 in one million and the TOSHI would be about 90.
For the reasons described above, under the authority of CAA section 112(f)(2), we propose to set particulate matter emission limits for the stacks at the following levels: 9.3 mg/dscm corrected to 2 percent CO
Process fugitive sources are partially controlled by the existing MACT via a shop building opacity standard; however, that standard was only intended to address tapping process fugitives generated under “normal” tapping process operating conditions. Casting and crushing and screening process fugitives in the furnace building were not included. Under the authority of section 112(d)(2) of the Act, which allows the use of measures to enclose systems or processes to eliminate emissions and measures to collect, capture or treat such pollutants when released from a process, stack, storage, or fugitive emissions point, we evaluated several options to achieve improved emissions capture. We developed several control scenarios to assess options to improve/add local ventilation and associated control (
We are proposing that the PM emissions limit (as a surrogate for particulate metal HAP) at the control device would be the same as it is for the furnace stacks (24 mg/dscm). This would allow sources the option to duct some or all process fugitive emissions to an existing furnace control device if it has excess capacity. If the existing control device at the facility does not have sufficient excess capacity to handle the captured emissions, the facility would have to install additional controls capable of complying with the proposed emission limit.
The source would also have to monitor building opacity, prepare and operate according to a process fugitives ventilation plan and conduct annual performance testing of the building ventilation control device to demonstrate compliance with the proposed standards. Baghouses would be required to be equipped with BLDS. We also propose that facilities would need to continue the practices to minimize outdoor fugitive dust emissions that are required by the 1999 MACT rule which includes implementing measures specified in their outdoor fugitive dust control plans as approved by the Administrator.
However, recognizing that there may be other control measures that could achieve equivalent emissions reductions that we have not yet identified, and to provide some flexibility for facilities to determine the best approach to reduce their emissions, we are also proposing an equivalent alternative compliance approach. Under this alternative approach, we propose that facilities would still need to continue the work practices to minimize outdoor fugitive dust emissions that are required by the 1999 MACT rule which includes implementing measures specified in their outdoor fugitive dust control plans as approved by the Administrator. However, in lieu of building the full enclosure and capture and evacuation system described above to control
Specifically, we propose to require that sources seeking to use this alternative prepare and submit for the Administrator's approval a written plan describing and explaining the equivalent alternative approach that they propose to apply and a proposed compliance monitoring network that must consist of at least two monitors located at or near the facility boundary, and in locations expected to have the highest concentrations of manganese, and the procedures for sampling, sample handling and custody, sample analysis, quality assurance, and recordkeeping procedures. The purpose of the ambient air monitoring network would be to ensure that manganese concentrations in air near the facility boundaries remain at or below 0.1 μg/m
This alternative regulatory requirement would provide flexibility to facilities in determining the within-facility emission sources that should be captured and vented to a control device that are most effective for reducing process fugitive emissions at their facilities. However, any facility considering this alternative approach would need to demonstrate that they can be expected to achieve the fenceline limitation with the proposed alternative approach and obtain approval from the Administrator. This is especially important for facilities with a history of elevated ambient manganese concentrations based on monitoring by state regulatory agencies or the EPA, or any facility that has been confirmed as the main contributor to elevated monitored manganese concentrations in a particular area. Nevertheless, we are seeking comments on this proposed alternative requirement, including the controls and practices that can achieve the equivalent level of reductions, the averaging time for monitoring, and whether two monitors would be sufficient or if more monitors may be warranted.
We propose to set the fenceline concentration level at 0.1 μg/m
As part of this alternative, we are also proposing a provision that would allow for reduced monitoring if the facility demonstrates ambient manganese concentrations less than 50 percent of the ambient manganese concentration limit for 3 consecutive years at each monitor. We propose that a revised monitoring plan may be submitted (for review and possible approval by the Administrator) to reduce the sampling and analysis frequency if all of the 10-sample rolling average concentrations at each monitor are less than 50 percent of the limit of 0.1 μg/m
All of these proposed controls are described further under the technology review (in section IV.D.2.) of this preamble.
The results of the post-control chronic inhalation cancer risk assessment indicate that, based on actual emissions, the maximum individual lifetime cancer risk posed by these two facilities, after the implementation of the proposed controls, could be up to 5 in one million, reduced from 80 in one million (
The results of the post-control assessment also indicate that, based on actual emissions, the maximum chronic noncancer inhalation TOSHI value would be reduced to 2, from the baseline estimate of 90. The number of people estimated to have a TOSHI greater than 1 would be reduced from 28,000 to less than 10.
We also estimate that after the implementation of controls, the maximum worst-case acute refined HQ value would be reduced from a potential high of 10 to 0.3 (based on the REL value for nickel compounds) eliminating any potential for acute impacts of concern.
Considering post-control emissions of multipathway HAP, mercury emissions would be reduced approximately 88 percent, while POM emissions would be reduced approximately 66 percent from the baseline emission rates. Based on our intermediate screening approach for multipathway risks, emissions of mercury “screen out,” or are reduced below the screening threshold for both facilities, indicating no potential for multipathway impacts of concern due to mercury. However, emissions of POM (as benzo(a)pyrene TEQ) remain above the intermediate screening thresholds for both facilities (one by a factor of 20 and one by a factor of 2), indicating that we cannot rule out the potential for multipathway impacts of concern due to emissions of POM from these facilities.
Under the ample margin of safety analysis, we evaluate the cost and feasibility of available control technologies and other measures (including the controls, measures and costs reviewed under the technology review) that could be applied in this source category to further reduce the risks due to emissions of HAP identified in our risk assessment.
We estimate that the actions proposed under CAA section 112(f)(2), as described above to address unacceptable risks, will reduce the MIR associated with arsenic, nickel and chromium from 80 in one million (50 in one million using the lower end of the nickel URE range) to 5 in one million for actual emissions. The cancer incidence will be reduced from 0.002 to 0.0004, and the number of people estimated to have cancer risks greater than one in one million will be reduced, from 26,000 people to 1,300 people. The chronic noncancer inhalation TOSHI will be reduced from 90 to 2, and the number of people exposed to a TOSHI level greater than 1 will be reduced from 28,000 people to less than 10 people. In addition, the maximum acute HQ value will be reduced from potentially up to 10 to less than 1, and the potential multipathway impacts will be reduced.
Based on all of the above information, we conclude that the risks after implementation of the proposed controls are acceptable. Based on our research and analysis, we did not identify any cost-effective controls beyond those proposed above that would achieve further reduction in risk. Therefore we conclude that the controls to achieve acceptable risks (described above) will also achieve an ample margin of safety. Although we conclude that the implementation of the proposed requirements described above will provide public health protection with an ample margin of safety we acknowledge that there may be other control technologies that may also achieve these goals.
We are soliciting comments and information regarding additional dust and process fugitive control measures and work practices that may be more feasible to implement and effective in further reducing process and dust fugitive emissions of metal HAP, or additional monitoring that may be warranted to ensure adequate control of fugitive emissions. We also request comments on the cost effectiveness of achieving the proposed process fugitive control measures and any additional options that may be more cost effective.
We also note that we are soliciting comment on our proposed risk finding. If we conclude, after evaluating data and information received in comments on this proposed rule, that the risks posed by this source category are acceptable, then based on the data and information we currently have, we would likely adopt the same controls described in section IV.C.2 as being necessary to provide an ample margin of safety. As noted above in this section and in section IV.C.2.c., the proposed controls provide significant risk reductions beyond the current rule. Furthermore, as discussed more extensively in section IV.D.2 of this notice, below, we conclude that these controls are cost effective and technically feasible. We solicit comment on the appropriateness of these controls in the event we find, based on data and information received in comment, that the current rule provides an acceptable risk.
Based on our technology review, we determined that there have been advances in emissions control measures since the Ferroalloys Production NESHAP was originally promulgated in 1999. Since promulgation, facilities have steadily improved the performance of their control devices through upgrades or replacements. They have also developed improved capture techniques for some process fugitives (
We propose to continue to use particulate matter as a surrogate for metal HAP other than mercury. For a discussion regarding the appropriateness of particulate matter as a surrogate for non-mercury metal HAP, please see the memo “Surrogate for Metal HAP Emissions for the Ferroalloys Source Category” in the docket for this proposed rule. Based on the results from the ICR test program, we determined that all of the sources of stack emissions are emitting at significantly lower levels than their maximum permitted levels. For this reason, under the authority of CAA section 112(d)(6), we are proposing revised emission limits for new and existing sources. We are also proposing that any uncontrolled furnace vent stacks would be subject to the same concentration limits.
We calculated the proposed emission limits based on a UPL analysis, resulting in a proposed existing source furnace stack emissions limit of 24 mg/dscm and proposed new source furnace stack emissions limit of 9.3 mg/dscm. We also calculated a proposed stack emission limit of 13 mg/dscm for crushing and screening equipment that would apply to both new and existing sources.
The metal oxygen refining operation is a unique process, and so we only have a single ICR test data point. Therefore, we calculated a proposed emissions limit for this source using the 99 percent UPL from the test data, resulting in a proposed limit of 3.9 mg/dscm that would apply to new and existing metal oxygen refining operation sources. We request comment on whether we should instead set the MOR limit to be the same as the proposed furnace stack limit for existing sources. This change would allow a facility to use any excess capacity in the MOR control device to treat furnace emissions, if needed. Such a limit is still more stringent than the current limit included in subpart XXX for the MOR (approximately 69 mg/dscm).
Based on our analyses, we expect that no additional controls would be required for the facilities to comply with these proposed limits. To demonstrate compliance, we propose that sources would be required to conduct periodic performance testing, and develop and operate according to a baghouse operating plan or continuously monitor scrubber operating parameters. Furnace baghouses would be required to be equipped with bag leak detection systems (BLDS).
As described above, we evaluated several options to improve and increase the capture and control of process fugitive sources. The two main options involve either local ventilation or building ventilation. Local ventilation (
We evaluated an option to enclose the furnace building(s) and evacuate the emissions to a control device(s) similar to the system used at the ferrosilicon producing facility described above. Based on that evaluation, we believe that it is feasible to install enclosures and have the fugitive emissions at the ridge vents of the shop building collected under negative pressure and ducted to a control device, and have a PM emissions limit at the control device the same as it is for the furnace stacks (
We estimate the total capital costs of installing the required ductwork, fans, and baghouses under this option to be $9.4 million and the total annualized costs to be $2.3 million for the two plants. We estimate that particulate metal HAP emissions would be reduced by 81 tons, resulting in a cost per ton of HAP removed at $28,000 per ton ($14 per pound). We also estimate that this option would achieve PM emission reductions of 630 tons, resulting in a cost per ton of PM removed at $3,600 per ton and achieve PM
As described above in section IV.C.2.b, we are also proposing an equivalent alternative compliance approach. Facilities can design and implement an equivalent alternative approach (
The controls for HCl, formaldehyde, mercury and PAHs were described in Section IV.A., and no additional controls have been identified.
The existing rule has a requirement for an outdoor fugitive dust control plan. We are unable to quantify HAP emissions from outdoor fugitive dust sources and did not identify any additional procedures or controls that could be expected to have a significant impact on these emissions. Therefore, we are not proposing to change the existing requirements.
The United States Court of Appeals for the District of Columbia Circuit vacated portions of two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM.
We are proposing the elimination of the SSM exemption in this rule. Consistent with
In proposing the standards in this rule, the EPA has taken into account startup and shutdown periods and, for the reasons explained below, has not proposed different standards for those periods.
Information on periods of startup and shutdown received from the industry in the ICR indicate that emissions during these periods do not increase. Control devices such as baghouses for metal HAP particulate control and activated carbon controls for mercury are started up before the process units, and are operational during the shutdown phase of a process. Therefore, no increase in emissions is expected during these periods. Building ventilation systems for process fugitive emissions will be in place at all times. Therefore, separate standards for periods of startup and shutdown are not being proposed.
Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. However, by contrast, malfunction is defined as a “sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual manner * * *” (40 CFR 63.2). The EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 112 standards. Under CAA section 112, emissions standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source, and emission standards for existing sources generally must be no less stringent than the average emissions limitation “achieved” by the best performing 12 percent (or 5 sources in cases where there are fewer than 30 sources in the source category) of sources in the category. There is nothing in CAA section 112 that directs the Agency to consider malfunctions in determining the level “achieved” by the best performing or best controlled sources when setting emissions
Further, accounting for malfunctions would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur. As such, the performance of units that are malfunctioning is not “reasonably” foreseeable.
In the event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112(d) standard was, in fact, “sudden, infrequent, not reasonably preventable” and was not instead “caused in part by poor maintenance or careless operation” 40 CFR 63.2 (definition of malfunction).
Finally, the EPA recognizes that even equipment that is properly designed and maintained can sometimes fail and that such failure can sometimes cause an exceedance of the relevant emissions standard. (See,
The EPA included an affirmative defense in the proposed rule in an attempt to balance a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. The EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. 7602(k) (defining “emission limitation and emission standard”).
Specifically, we are proposing the following changes to the rule.
• Added general duty requirements in 40 CFR 63.1623(g) to replace General Provision requirements that reference vacated SSM provisions.
• Added replacement language that eliminates the reference to SSM exemptions applicable to performance tests in 40 CFR 63.1625(a)(5).
• Added paragraphs in 40 CFR 63.1629(d) requiring the reporting of malfunctions as part of the affirmative defense provisions.
• Added paragraphs in 40 CFR 63.1629(b) requiring the keeping of certain records during malfunctions as part of the affirmative defense provisions.
• Developed Table 1 to subpart XXX of part 63 to reflect changes in the applicability of the General Provisions to this subpart resulting from a court vacatur of certain SSM requirements in the General Provisions.
The EPA and other authorities such as state, local and tribal agencies must have performance test data to conduct effective reviews of CAA sections 112 and 129 standards, as well as for many other purposes including compliance determinations, emission factor development, and annual emission rate determinations. We believe that improvements in the process of submitting, reviewing and storing test data would result in increases in efficiency and cost savings to the regulated community; state, local and tribal agencies; the public and ourselves. These improvements are possible because stack testing firms are increasingly collecting performance test data in electronic format, making it possible to move to an electronic data submittal system that would increase the ease and efficiency of data submittal and improve data accessibility.
Through this proposal, the EPA is proposing a step to increase the ease and efficiency of data submittal and improve data accessibility. Specifically, the EPA is proposing that owners and operators of Ferroalloys Production facilities submit electronic copies of required performance test reports to the EPA's WebFIRE database. The WebFIRE database was constructed to store performance test data for use in developing emission factors. A description of the WebFIRE database is available at
As proposed above, data entry would be through an electronic emissions test report structure called the Electronic Reporting Tool (ERT). The ERT would be able to transmit the electronic report through the EPA's Central Data Exchange network for storage in the WebFIRE database, making submittal of data very straightforward and easy. A description of the ERT can be found at
The proposal to submit performance test data electronically to the EPA would apply only to those performance tests conducted using test methods that will be supported by the ERT. The ERT contains a specific electronic data entry form for most of the commonly used EPA reference methods. A listing of the pollutants and test methods supported by the ERT is available at
One major advantage of the proposed submittal of performance test data through the ERT is a standardized method to compile and store much of the documentation required to be reported by this rule. Another advantage is that the ERT clearly states what testing information would be required. Another important proposed benefit of submitting these data to the EPA at the time the source test is conducted is that it should substantially reduce the effort involved in data collection activities in the future. When the EPA has performance test data in hand, there will likely be fewer or less substantial data collection requests in conjunction with prospective required residual risk assessments or technology reviews. This would result in a reduced burden on both affected facilities (in terms of reduced manpower to respond to data collection requests) and the EPA (in terms of preparing and distributing data collection requests and assessing the results).
State, local, and tribal agencies could also benefit from more streamlined and accurate review of electronic data submitted to them. The ERT would allow for an electronic review process rather than a manual data assessment making review and evaluation of the source provided data and calculations easier and more efficient. Finally, another benefit of the proposed data submittal to WebFIRE electronically is that these data would greatly improve the overall quality of existing and new emissions factors by supplementing the pool of emissions test data for establishing emissions factors and by ensuring that the factors are more representative of current industry operational procedures. A common complaint heard from industry and regulators is that emission factors are outdated or not representative of a particular source category. With timely receipt and incorporation of data from most performance tests, the EPA would be able to ensure that emission factors, when updated, represent the most current range of operational practices. In summary, in addition to supporting regulation development, control strategy development, and other air pollution control activities, having an electronic database populated with performance test data would save industry, state, local, tribal agencies, and the EPA significant time, money, and effort while also improving the quality of emission inventories and, as a result, air quality regulations.
We are proposing to add an emissions averaging option for electric arc furnace stack emissions (PM, mercury, PAH, HCl or formaldehyde). If you have more than one existing emission source (
We are also proposing to allow averaging between existing process fugitive control devices for PM stack emissions as a second averaging group. However, we believe it may be appropriate to combine these process fugitive stack emissions into the furnace stack averaging group for PM emissions
We are also proposing to allow averaging between existing crushing and screening equipment for PM stack emissions. We believe this is a distinct averaging group compared to the furnace and process fugitives groups. The airflow and associated control devices are typically much smaller and they are subject to a more stringent emission limit than the other PM sources. However, we request comment on the potential for more broadly defined averaging options for this group.
As part of the EPA's general policy of encouraging the use of flexible compliance approaches where they can be properly monitored and enforced, we are including emissions averaging for existing sources in this proposed rule. Emissions averaging can provide sources the flexibility to comply in the least costly manner while still maintaining regulation that is workable and enforceable. Emissions averaging would allow owners and operators of an existing affected source to demonstrate that the source complies with the proposed emission limits by averaging the emissions from an individual affected emission unit that is emitting above the proposed emission limits with other affected emission units at the same facility that are emitting below the proposed emission limits and that are within the same averaging group, as described below.
This proposed rule includes an emissions averaging compliance alternative because emissions averaging represents an equivalent, more flexible, and less costly alternative to controlling certain emission points to MACT levels. We have concluded that a limited form of averaging could be implemented that would not lessen the stringency of the MACT limits and would provide flexibility in compliance, cost and energy savings to owners and operators of existing sources. We also recognize that we must ensure that any emissions averaging option can be implemented and enforced, will be clear to sources, and most importantly, will be no less stringent than unit by unit implementation of the MACT limits.
The EPA is proposing to establish within a NESHAP a unified compliance regimen that permits averaging within an existing affected source across individual affected units subject to the standard under certain conditions. Averaging across affected units is permitted only if it can be demonstrated that the total quantity of any regulated pollutant that may be emitted by that portion of a contiguous major source that is subject to the NESHAP will not be greater under the averaging mechanism than it could be if each individual affected unit complied separately with the applicable standard. Under this test, the practical outcome of averaging is equivalent to compliance with the MACT limits by each discrete unit, and the statutory requirement that the MACT standard reflect the maximum achievable emissions reductions is, therefore, fully effectuated.
In past rulemakings, the EPA has generally imposed certain limits on the scope and nature of emissions averaging programs. These limits include: (1) No averaging between different types of pollutants; (2) no averaging between sources that are not part of the same affected source; (3) no averaging between individual sources within a single major source if the individual sources are not subject to the same NESHAP; and (4) no averaging between existing sources and new sources. This proposed rule is consistent with these limitations. First, emissions averaging would only be permitted between individual sources at a single existing affected source, and would only be permitted between individual sources subject to the proposed Ferroalloys Production NESHAP. Further, emissions averaging would not be permitted between two or more different affected sources. Finally, new affected sources could not use emissions averaging. Accordingly, we have concluded that the averaging of emissions across affected units is consistent with the CAA.
In addition, this proposed rule would require each facility that intends to utilize emission averaging to submit an emission averaging plan, which provides additional assurance that the necessary criteria will be met. In this emission averaging plan, the facility must include the identification of: (1) All units in the averaging group; (2) the control technology installed; (3) the process parameters that will be monitored; (4) the specific control technology or pollution prevention measure(s) to be used; (5) the test plan for the measurement of the HAP being averaged; and (6) the operating parameters to be monitored for each control device. Upon receipt, the regulatory authority would not be able to approve an emission averaging plan containing averaging between emissions of different types of pollutants or between different affected sources (e.g., between furnaces and crushing and screening equipment).
We seek comment on use of a discount factor when emissions averaging is used and on the appropriate value of a discount factor, if used. Such discount factors (e.g., 10 percent) have been used in previous NESHAP, particularly where there was variation in the types of units within a common source category to ensure that the environmental benefit was being achieved. In this situation, however, the affected sources are more homogeneous, making emissions averaging a more straight forward analysis. Further, with the monitoring and compliance provisions that are being proposed, there is additional assurance that the environmental benefit will be realized. The emissions averaging provisions in this proposed rule are based in part on the emissions averaging provisions in the Hazardous Organic NESHAP (HON). The legal basis and rationale for the HON emissions averaging provisions were provided in the preamble to the final HON.
The following lists additional minor changes to the NESHAP we are proposing. The main focus of these changes is to ensure that the rule provides adequate monitoring, reporting, recordkeeping and testing provisions to ensure that the affected sources are able to demonstrate continuous compliance with the proposed standards. These changes reflect changes we have made to many other existing NESHAP to improve the quality of these compliance requirements. This list also includes proposed rule changes that address editorial corrections and plain language revisions:
• Reduce frequency of emission testing for the primary furnace control devices for PM and propose periodic testing for PM and other regulated pollutants. This change is possible because of requirement to conduct continuous monitoring. Also add a periodic testing requirement for the building ventilation system control devices and crushing and screening equipment control devices.
• Add requirement for new and existing baghouses that control furnace or building ventilation systems to be equipped with BLDS to demonstrate continuous compliance. Retain provisions for baghouses to have a baghouse SOP manual.
• Add requirements to implement and enforce more detailed requirements for
• Reduce the shop building opacity limit to 10 percent opacity to reflect current industry performance. Eliminate 6-minute excursion level because it does not provide any significant flexibility (sources that tend to exceed the general opacity limit in any 6-minute period tend to do so for several minutes so that the excursions for one 6-minute period is meaningless). Eliminate events excluded from the opacity observation as they are infrequent, can be avoided in some cases, are emitted from operations we intend to control better, and can be confusing to enforce.
• Change the format of the PM standards to reflect an outlet concentration format (mg/dscm). This format is the direct output of the emissions test and reflects the constant output nature of the predominant control device,
• Add PM continuous emissions monitoring system as an alternative to installing and operating a BLDS.
• Editorial changes, including revising the titles of sections in the subpart to better reflect the description of proposed requirements and to make the regulation easier for the reader to navigate.
• Update the recordkeeping and reporting sections to reflect the new monitoring requirements and monitoring options described above.
• Update the compliance dates to include the anticipated dates the proposed requirements will become effective.
We are proposing that facilities must comply with the new proposed requirements in this action (which are being proposed under CAA sections 112(d)(2), 112(d)(3), 112(d)(6) and 112(f)(2) for all affected sources), no later than 2 years after the effective date of this rule. In the period between the effective date of this rule and the compliance date, existing sources would continue to comply with the existing requirements specified in §§ 63.1650 through 63.1661.
Under 40 CFR 63.6(i)(4)(ii), “the owner or operator of an existing source unable to comply with a relevant standard established* * * pursuant to section 112(f) * * * may request that the Administrator grant an extension allowing the source up to 2 years after the standard's effective date to comply with the standard.” The rule further specifies a written application for such a request. Here, the EPA is already fully aware of the steps needed for each source to comply with the proposed standards and to reasonably estimate the amount of time it will take each source to do so. We believe that the 2-year extension would be warranted in all cases for sources needing to upgrade current practice. This includes the time needed to: Construct required building ventilation systems and install associated control devices for process fugitive sources; determine appropriate mercury and PAH control devices, locations, amount and type of carbon needed and assess potential waste disposal issues; select and install appropriate monitoring technologies; seek bids, select a vendor, install and test the new equipment; and, purchase, install and conduct QA and quality control measures on compliance monitoring equipment (see
We anticipate that the two manganese production ferroalloys production facilities currently operating in the United States will be affected by these proposed amendments. We do not know of any new facilities that are expected to be constructed in the foreseeable future. However, there is one facility that has a permit to produce ferromanganese or silicomanganese in an electric arc furnace, but it did so for only a brief period, several years ago. It is possible that this facility could resume production or another non-manganese ferroalloy producer could decide to commence production of ferromanganese or silicomanganese. One of the existing facilities is considering building a new manganese furnace, but their timeline and actual intent to go forward is unclear. Given this uncertainty, our impact analysis is focused on the two existing sources that are currently operating.
The EPA estimated the emissions reductions that are expected to result from the proposed amendments to the 1999 NESHAP compared to the 2010 baseline emissions estimates. A detailed documentation of the analysis can be found in:
Emissions of metal HAP from ferroalloys production sources have declined in recent years, primarily as the result of state actions and also due to the industry's own initiative. The current proposal would cut HAP emissions (primarily particulate metal HAP such as manganese, arsenic and nickel) by 60 percent from their current levels. Under the proposed emissions limit for process fugitives emissions from the furnace building, we estimate that the HAP emissions reductions would be 81 tpy, including significant reductions of manganese. We also anticipate mercury reductions of 420 lb/yr and PAH reductions of 2.5 tpy from installation of activated carbon injection controls at one facility. Total HAP reductions for the two facilities are estimated to be 84 tpy.
Based on the emissions data available to the EPA, we believe that both facilities will be able to comply with the proposed emissions limits for HCl and formaldehyde without additional controls. There may be some formaldehyde emission reductions at the facility that we believe will be required to install an activated carbon injection system, but we have not quantified these reductions because of the uncertainty of the effectiveness of the activated carbon system designed for mercury and PAH removal compared to formaldehyde removal. We do not anticipate any reductions in HCl.
Under the proposed amendments, ferroalloys production facilities are expected to incur capital costs for the installation of ductwork and baghouses for building ventilation and activated carbon injection systems. There would also be capital costs associated with installing new or improved continuous monitoring systems, included installation of BLDS on the furnace and building ventilation baghouses that are not currently equipped with these systems.
The capital costs for each facility were estimated based on the number and types of upgrades required. The memorandum
The majority of the capital costs estimated for compliance with the amendments proposed in this action are for purchasing new control devices. For the shop building ventilation system, we assumed that each facility would
To estimate the cost for the building ventilation fabric filter, we contacted a vendor who had recently supplied a fabric filter to one of the facilities to obtain assistance in developing a cost estimate for the installation. The equipment-only cost supplied by the vendor was used in conjunction with techniques described in the sixth edition of the EPA Air Pollution Control Cost Manual
Our cost model included installation of the baghouse and any necessary fans, ductwork, and site work, including extra ductwork for connection to the building roof monitors. The total installed capital cost of three fabric filters (two at one facility, one at the second facility) designed for a flow-rate of 150,000 actual cubic feet per minute was estimated at $9.4 million. The annualized capital cost and operational and maintenance costs are estimated at $2.3 million, via techniques described in the sixth edition of the EPA Air Pollution Control Cost Manual. The annualized cost assumes a 20-year life expectancy for the unit and, to be consistent with OMB Guidance in Circular A-4, a 7 percent cost of capital as an estimate of the annualized capital cost.
We considered installation of both fixed carbon beds and activated carbon injections for the control of mercury and PAH emissions. After talking to carbon vendors, we learned that fixed carbon beds are not a viable option given the size of the furnace airstream we would need to control. We also considered whether to put the activated carbon injection upstream or downstream of the existing PM control device. By installing the system downstream of the PM control device, we would avoid potential concerns with the activated carbon interfering with potential sale or reuse of baghouse dust or potential increase in mercury load in the scrubber sludge impoundment. This approach requires installation of a separate “polishing” baghouse to capture the injected carbon for disposal.
Unlike activated carbon systems used primarily for control of volatile organic compounds, we have been told that mercury impregnated compounds cannot be recycled. There is concern that such downstream control could result in sufficient concentration of mercury in the baghouse dust that the facility would be required to treat such dust as a hazardous waste under the RCRA. However, based on conversations with vendors and other mercury control experts, we believe that the resulting waste will most likely be nonhazardous. We are seeking comments on the cost methodology and assumptions used to develop these cost estimates.
Costs for Activated Carbon Injection (ACI) were estimated using cost equations developed for the Utility NESHAP.
The estimated costs for the proposed change to the monitoring requirements for baghouses, including installation of seven new BLDS for four existing furnace baghouses and three building ventilation baghouses is $270,000 of capital cost. The capital cost for a differential pressure monitor to ensure that shop buildings are under negative pressure is $9,200. The capital cost estimated for a continuous parameter monitoring system for the wet scrubber at one facility is estimated to be $50,000. Finally, the estimated capital cost for carbon injection monitoring is $20,000. The capital costs for all additional monitoring and recordkeeping requirements, including the baghouse monitoring proposed, is estimated at $340,200.
Annualized costs are estimated to be $94,000 for the BLDS, $18,000 for the scrubber parameter monitoring system, and $6,200 for the carbon injection monitoring system. There is also an estimated annualized cost to monitor the manganese ore content for mercury emissions of $1,200. The estimated annual cost for reporting and recordkeeping is $37,000. We estimate the costs of the periodic performance testing requirements to be $800,000. The resulting total annualized costs are $347,000.
The total annualized costs for the proposed rule are estimated at $4.0 million (2010 dollars). Table 6 provides a summary of the estimated costs and emissions reductions associated with the proposed amendments to the Ferroalloys Production NESHAP presented in today's action.
We estimate that there will be no more than a 0.2 percent price change and a similar reduction in output associated with the proposal. The impacts to affected firms will be low because the annual compliance costs are quite small when compared to the annual revenues for the two affected parent firms (much less than 1 percent for each). The impacts to affected consumers should also be quite small. Thus, there will not be any significant impacts on affected firms and their consumers as a result of this proposal.
We estimate the monetized benefits of this regulatory action to be $71 million to $170 million (2010$), at a 3 percent discount rate in the implementation year (2015). The monetized benefits of the regulatory action at a 7 percent discount rate are $63 million to $160 million (2010$) in the same implementation year. Using alternate relationships between PM
These benefits estimates represent the total monetized human health benefits for populations exposed to less PM
To generate the BPT estimates, we used a model to convert emissions of direct PM
For context, it is important to note that the magnitude of the PM benefits is largely driven by the concentration response function for premature mortality. Experts have advised the EPA to consider a variety of assumptions, including estimates based on both empirical (epidemiological) studies and judgments elicited from scientific experts, to characterize the uncertainty in the relationship between PM
The EPA strives to use the best available science to support our benefits analyses. We recognize that interpretation of the science regarding air pollution and health is dynamic and evolving. After reviewing the scientific literature and recent scientific advice, we have determined that the no-threshold model is the most appropriate model for assessing the mortality benefits associated with reducing PM
Most of the estimated PM-related benefits in this rule would accrue to populations exposed to higher levels of PM
This analysis does not include the type of detailed uncertainty assessment found in the 2006 p.m.2.5 NAAQS RIA because we lack the necessary air quality input and monitoring data to run the benefits model. In addition, we have not conducted any air quality modeling for this rule. However, to estimate BPT specifically for this sector we did have some updated air quality modeling. The 2006 PM
It should be emphasized that the monetized benefits estimates provided above do not include benefits from several important benefit categories, including reducing other air pollutants, ecosystem effects, and visibility impairment, as well as mercury and other HAPs. Although we do not have sufficient information or modeling available to provide monetized estimates for this rulemaking, we include a qualitative assessment of the health effects of these other effects in the RIA
To examine the potential for any environmental justice (EJ) issues that might be associated with the source category, we performed a demographic analysis of the at-risk population. In this analysis, we evaluated the distributions of HAP-related cancer and noncancer risks from the Ferroalloys Production source category across different social, demographic and economic groups within the populations living near these two facilities. The methodology and the results of the demographic analyses are included in a technical report,
The results of the demographic analysis are summarized in Table 8 below. These results, for various demographic groups, are based on the estimated risks from actual emissions levels for the population living within 50 km of the facilities.
The results of the Ferroalloy Production source category demographic analysis indicate that there are approximately 26,000 people exposed to a cancer risk at or above one in one million and approximately 28,000 people exposed to a chronic noncancer TOSHI greater than 1 due to emissions from the source category (we note that many of those in the first risk group are the same as those in the second). The percentages of the at-risk population in each demographic group (except for White and non-Hispanic) are similar to or lower than their respective nationwide percentages. Implementation of the provisions included in this proposal is expected to significantly reduce the number of at-risk people due to HAP emissions from these sources (from 26,000 people to about 1,000 for cancer risks and from 28,000 people to less than 10 for chronic noncancer TOSHI).
We are soliciting comments on all aspects of this proposed action. In addition to general comments on this proposed action, we are also interested
The site-specific emissions profiles used in the source category risk and demographic analyses are available for download on the RTR web page at:
If you believe that the data are not representative or are inaccurate, please identify the data in question, provide your reason for concern, and provide any “improved” data that you have, if available. When you submit data, we request that you provide documentation of the basis for the revised values to support your suggested changes. To submit comments on the data downloaded from the RTR Web page, complete the following steps:
1. Within this downloaded file, enter suggested revisions to the data fields appropriate for that information. The data fields that may be revised include the following:
2. Fill in the commenter information fields for each suggested revision (
3. Gather documentation for any suggested emissions revisions (
4. Send the entire downloaded file with suggested revisions in Microsoft® Access format and all accompanying documentation to Docket ID Number EPA-HQ-OAR-2010-0895 (through one of the methods described in the
5. If you are providing comments on a facility, you need only submit one file for that facility, which should contain all suggested changes for all sources at that facility. We request that all data revision comments be submitted in the form of updated Microsoft® Access files, which are provided on the RTR Web page at:
Under Section 3(f)(1) of Executive Order 12866 (58 FR 51735, October 4, 1993), this action is an “economically significant regulatory action” because it is likely to have an annual effect on the economy of $100 million or more. Accordingly, the EPA submitted this action to OMB for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011), and any changes made in response to OMB recommendations have been documented in the docket for this action.
In addition, the EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in the RIA for this proposed rule. A copy of the analysis is available in the docket for this action, and the analysis is briefly summarized above.
The cost and benefit analyses are subject to uncertainties. More information on these uncertainties can be found in the RIA and in the cost memo for the proposal.
A summary of the monetized benefits and net benefits for the proposed rule at discount rates of 3 percent and 7 percent is in Table 2 of this preamble and a more detailed discussion of the benefits is found in section V.E of this preamble.
For more information on the benefits analysis, please refer to the RIA for this rulemaking, which is available in the docket.
The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the
We are proposing new paperwork requirements to the Ferroalloys Production source category in the form of increased frequency and number of pollutants tested for stack testing as described in § 63.1625(c) and tighter parameter monitoring requirements to demonstrate continuous compliance as described in § 63.1625(c)(6) and § 63.1626. In conjunction shop building process fugitives monitoring, we believe that sources are currently equipped with adequate monitoring equipment and that the facilities will not incur a capital cost due to this requirement.
For this proposed rule, the EPA is adding affirmative defense to the estimate of burden in the ICR. To provide the public with an estimate of the relative magnitude of the burden associated with an assertion of the affirmative defense position adopted by a source, the EPA has provided administrative adjustments to this ICR to show what the notification, recordkeeping and reporting requirements associated with the assertion of the affirmative defense might entail. The EPA's estimate for the required notification, reports and records for any individual incident, including the root cause analysis, totals $3,141 and is based on the time and effort required of a source to review relevant data, interview plant employees, and document the events surrounding a malfunction that has caused an exceedance of an emissions limit. The estimate also includes time to produce and retain the record and reports for submission to the EPA. The EPA provides this illustrative estimate of this burden because these costs are only incurred if there has been a violation and a source chooses to take advantage of the affirmative defense.
Given the variety of circumstances under which malfunctions could occur, as well as differences among sources' operation and maintenance practices, we cannot reliably predict the severity and frequency of malfunction-related excess emissions events for a particular source. It is important to note that the EPA has no basis currently for estimating the number of malfunctions that would qualify for an affirmative defense. Current historical records would be an inappropriate basis, as source owners or operators previously operated their facilities in recognition that they were exempt from the requirement to comply with emissions standards during malfunctions. Of the number of excess emissions events reported by source operators, only a small number would be expected to result from a malfunction (based on the definition above), and only a subset of excess emissions caused by malfunctions would result in the source choosing to assert the affirmative defense. Thus, we believe the number of instances in which source operators might be expected to avail themselves of the affirmative defense will be extremely small. For this reason, we estimate no more than 1 or 2 such occurrences for all sources subject to subpart XXX over the 3-year period covered by this ICR. We expect to gather information on such events in the future and will revise this estimate as better information becomes available.
We estimate two regulated entities are currently subject to subpart XXX and will be subject to all proposed standards. The annual monitoring, reporting, and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) for these amendments to subpart XXX (Ferroalloys Production) is estimated to be $384,000 per year. This includes 483 labor hours per year at a total labor cost of $37,000 per year, and total non-labor capital and operation and maintenance costs of $347,000 per year. This estimate includes performance tests, notifications,
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When these ICRs are approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the
To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, the EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2010-0895. Submit any comments related to the ICR to the EPA and OMB. See the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. For this source category, which has the NAICS code 331112 (
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Neither of the companies affected by this rule is considered to be a small entity per the definition provided in this section.
This proposed rule does not contain a Federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The proposed rule would not result in expenditures of $100 million or more for state, local, and tribal governments, in aggregate, or the private sector in any 1 year. The proposed rule imposes no enforceable duties on any State, local or tribal governments or the private sector. Thus, this proposed rule is not subject to the requirements of sections 202 or 205 of the UMRA.
This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments nor does it impose obligations upon them.
This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the facilities subject to this action are owned or operated by state governments, and, because no new requirements are being promulgated, nothing in this proposed rule will supersede State regulations. Thus, Executive Order 13132 does not apply to this proposed rule.
In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from State and local officials.
This proposed rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this action.
The EPA specifically solicits additional comment on this proposed action from tribal officials.
This proposed rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because the Agency does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. The report,
This proposed rule is expected to reduce environmental impacts for everyone, including children. This action proposes emissions limits at the levels based on MACT, as required by the CAA. Based on our analysis, we believe that this rule does not have a disproportionate impact on children.
The public is invited to submit comments or identify peer-reviewed studies and data that assess effects of
This action is not a “significant energy action” as defined under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not likely to have significant adverse effect on the supply, distribution, or use of energy. This action will not create any new requirements and therefore no additional costs for sources in the energy supply, distribution, or use sectors.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (
This proposed rulemaking involves technical standards. The EPA proposes to use EPA Methods 1, 2, 3A, 3B, 4, 5, 5D, 9, 10, 26A, 30B, 316, CARB 429, SW-846 Method 3052, SW-846 Method 7471b and EPA water Method 1631E of 40 CFR Part 60, Appendix A. No applicable VCS were identified for EPA Methods 30B, 5D, 316, 1631E and CARB 429, SW-846 Method 3052, and SW-846 Method 7471b.
Two VCS were identified acceptable alternatives to EPA test methods for the purposes of this rule. The VCS standard ANSI/ASME PTC 19-10-1981-Part 10, “Flue and Exhaust Gas Analyses” is an acceptable alternative to Method 3B. The VCS ASTM D7520-09, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” is an acceptable alternative to Method 9 under specified conditions. The Agency identified 18 VCS as being potentially applicable to these methods cited in this rule. However, the EPA determined that the 18 candidate VCS would not be practical due to lack of equivalency, documentation, validation data and other important technical and policy considerations. The 18 VCS and other information and conclusions, including the search and review results, are in the docket for this proposed rule. The EPA welcomes comments on this aspect of this proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.
Under section 63.7(f) and section 63.8(f) of Subpart A of the General Provisions, a source may apply to the EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the proposed rule.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA has proposed that the current health risks posed by emissions from this source category are unacceptable. There are about 26,000 to 28,000 people nationwide that are currently subject to health risks which may not be considered neglible (
Air pollution control, Environmental protection, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, part 63 of title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 63 continues to read as follows:
42 U.S.C. 7401, et seq.
2. Section 63.14 is amended by:
a. Adding paragraph (b)(69);
b. Revising paragraph (i)(1);
c. Revising paragraph (p)(6) and adding paragraphs (p)(8) and (p)(9); and
d. By adding paragraphs (r)(1) and (r)(2).
(b) * * *
(69) ASTM D7520-09, “Standard Test Method for Determining the Opacity in a Plume in an Outdoor Ambient Atmosphere,” IBR approved for § 63.1625(b)(9).
(i) * * *
(1) ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus],” IBR approved for §§ 63.309(k)(1)(iii), 63.865(b), 63.1625(b)(3)(iii), 63.3166(a)(3), 63.3360(e)(1)(iii), 63.3545(a)(3), 63.3555(a)(3), 63.4166(a)(3), 63.4362(a)(3), 63.4766(a)(3), 63.4965(a)(3), 63.5160(d)(1)(iii), 63.9307(c)(2), 63.9323(a)(3), 63.11148(e)(3)(iii), 63.11155(e)(3), 63.11162(f)(3)(iii) and (f)(4), 63.11163(g)(1)(iii) and (g)(2), 63.11410(j)(1)(iii), 63.11551(a)(2)(i)(C), table 5 to subpart DDDDD of this part, table 1 to subpart ZZZZZ of this part, and table 4 to subpart JJJJJJ of this part.
(p) * * *
(6) SW-846-7471B, Mercury in Solid Or Semisolid Waste (Manual Cold-Vapor Technique), Revision 2, February 2007, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for § 63.1625(b)(10), table 6 to subpart DDDDD of this part and table 5 to subpart JJJJJJ of this part.
(8) SW-846-Method 3052, Microwave Assisted Acid Digestion Of Siliceous
(9) Method 1631, Revision E: Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry, August 2002 located at:
(r) The following material is available from the California Air Resources Board (CARB), 1102 Q Street, Sacramento, California 95814, (
(1) Method 429, Determination of Polycyclic Aromatic Hydrocarbon (PAH) Emissions from Stationary Sources, Adopted September 1989, Amended July 1997, IBR approved for § 63.1625(b)(11).
(2) [Reserved]
3. Section 63.1620 is added to read as follows:
(a) You are subject to this subpart if you own or operate a new or existing ferromanganese and/or silicomanganese production facility that is a major source or is co-located at a major source of hazardous air pollutant emissions.
(b) You are subject to this subpart if you own or operate any of the following equipment as part of a ferromanganese or silicomanganese production facility:
(1) Open, semi-sealed, or sealed submerged arc furnace,
(2) Casting operations,
(3) Metal oxygen refining (MOR) process,
(4) Crushing and screening operations,
(5) Outdoor fugitive dust sources.
(c) A new affected source is any of the sources listed in paragraph (b) of this section for which construction or reconstruction commenced after November 23, 2011.
(d) Table 1 of this subpart specifies the provisions of subpart A of this part that apply to owners and operators of ferromanganese and silicomanganese production facilities subject to this subpart.
(e) If you are subject to the provisions of this subpart, you are also subject to title V permitting requirements under 40 CFR parts 70 or 71, as applicable.
(f) Emission standards in this subpart apply at all times.
4. Section 63.1621 is added to read as follows:
(a) Existing affected sources must be in compliance with the provisions specified in §§ 63.1620 through 63.1630 no later than [2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(b) Affected sources in existence prior to November 23, 2011 must be in compliance with the provisions specified in §§ 63.1650 through 63.1661 by November 21, 2001 and until [2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]. As of [2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the provisions of §§ 63.1650 through 63.1661 cease to apply to affected sources in existence prior to November 23, 2011. The provisions of §§ 63.1650 through 63.1661 remain enforceable at a source for its activities prior to [2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(c) If you own or operate a new affected source that commences construction or reconstruction after November 23, 2011, you must comply with the requirements of this subpart by [EFFECTIVE DATE OF FINAL RULE], or upon startup of operations, whichever is later.
5. Section 63.1622 is added to read as follows:
Terms in this subpart are defined in the Clean Air Act (Act), in subpart A of this part, or in this section as follows:
6. Section 63.1623 is added to read as follows:
(a)
(1)
(i) You must not discharge exhaust gases (including primary and tapping emissions) containing particulate matter in excess of 9.3 milligrams per dry standard cubic meter (mg/dscm), corrected to 2 percent carbon dioxide (CO
(ii) You must not discharge exhaust gases (including primary and tapping emissions) containing particulate matter in excess of 24 mg/dscm, corrected to 2 percent CO
(2)
(3)
(4)
(5)
(b)
(1) You must install, operate, and maintain a capture system that collects all of the process fugitive emissions from the shop building (including tapping, casting, ladle treatment and crushing and screening equipment process fugitives) at a negative pressure of at least 0.007 inches of water, and conveys the collected emissions to a control device. You must not discharge into the atmosphere emissions from the control device containing particulate matter in excess of 24 mg/dscm, corrected to 2 percent CO
(2) You must not cause emissions exiting from a shop building, to exceed 10 percent opacity for more than one 6-minute period.
(3) As an alternative to meeting the requirements specified in paragraph (b)(1) of this section, you can elect to demonstrate compliance by meeting the requirements of paragraphs (b)(3)(i) through (b)(3)(ii) of this section.
(i) You must install compliance monitors on or near the plant boundary, at locations approved by the Administrator, to demonstrate that the manganese concentration in air is at all times maintained below a 10-sample rolling average value of 0.10 μg/m3 at each monitor.
(A) Samples must be collected every 6 days. All samples are 24-hr integrated samples.
(B) Calculate a 10-sample rolling average to demonstrate compliance with the action level specified in paragraph (b)(3)(i) of this section. Missed or invalidated samples must be made up only on the established site-specific 1- in 6-day schedule to include the required number of makeup samples to achieve a minimum of 10 valid samples).
(C) Collect particles in the PM10 size fraction at a set flow rate of 16.7 l/minute using a 47 mm Teflon filter.
(D) Conduct the analysis using an EPA method (such as compendium method IO-3.5) and ensure the manganese method detection limit (MDL) is no greater than 0.01 μg/m
(E) All data, to include values below MDL, must be reported. Under no circumstances are data value substitutions (
(ii)(A) The monitoring system must include at least two ambient monitors and at least one of these monitors must be in a location that is expected to have the highest air concentrations at or near the facility boundary based on ambient dispersion modeling or other methods approved by the Administrator.
(B) You must submit a written plan describing and explaining the basis for the design and adequacy of the compliance monitoring network, the sampling, analytical and quality assurance procedures and the justification for any data adjustments within 45 days after the effective date of this subpart.
(C) The Administrator at any time may require changes in or expansion of, the monitoring program, including additional sampling and more frequent sampling, or revisions to the analytical protocols and network design.
(c)
(d)
(e)
(f)
(1) As an alternative to meeting the emission standards specified in paragraphs (a)(1) through (a)(6) of this section on an electric arc furnace-specific basis, and if you have more than one existing electric arc furnace located at one or more contiguous properties, which are under common control of the same person (or persons under common control), you may demonstrate compliance by emission averaging among the existing electric arc furnaces, if your averaged emissions for such electric arc furnaces are equal to or less than the applicable emission limit.
(2) As an alternative to meeting the emission standard specified in paragraph (b)(1) of this section on a building ventilation control device-specific basis, and if you have more than one existing building ventilation control device located at one or more contiguous properties, which are under common control of the same person (or persons under common control), you may demonstrate compliance by emission averaging among the existing building ventilation control devices, if your averaged emissions for such building ventilation control devices are equal to or less than the applicable emission limit.
(3) As an alternative to meeting the emission standard specified in paragraph (e) of this section on a crushing and screening equipment control device-specific basis, and if you have more than one existing crushing and screening equipment control device located at one or more contiguous properties, which are under common control of the same person (or persons under common control), you may demonstrate compliance by emission averaging among the existing crushing or screening equipment control devices, if your averaged emissions for such crushing or screening equipment control devices are equal to or less than the applicable emission limit.
(g) The averaged emissions rate from the existing equipment specified in paragraph (f) of this section participating in the emissions averaging option must be in compliance with the emission standards specified in paragraphs (a), (b) and (e) of this section by the compliance date specified in § 63.1621. You must develop, and submit to the applicable regulatory authority for review and approval upon request, an implementation plan for emission averaging according to the following procedures and requirements in paragraphs (g)(1) through (g)(4) of this section.
(1) You must submit the implementation plan no later than 180 days before the date that the facility intends to demonstrate compliance using the emission averaging option.
(2) You must include the information contained in paragraphs (g)(2)(i) through (g)(2)(vii) of this section in your implementation plan for all emission sources included in an emissions average:
(i) The identification of all existing equipment specified in paragraph (f) of this section in the applicable averaging group, including for each either the applicable HAP emission level or the control technology installed as of [DATE 60 DAYS AFTER EFFECTIVE DATE OF THE FINAL RULE] and the date on which you are requesting emission averaging to commence;
(ii) A description of how you will comply with the monitoring procedures specified in § 63.1626 for each averaging group;
(iii) The specific control technology to be used for each piece of equipment specified in paragraph (f) of this section in the averaging group and the date of its installation or application;
(iv) The test plan for the measurement of particulate matter, hydrochloric acid, formaldehyde and mercury emissions, as applicable, in accordance with the requirements in § 63.1625 and the planned test dates to ensure that averaged units are tested concurrently or with minimal differences in the testing dates;
(v) The operating parameters to be monitored for each control system or device consistent with § 63.1626 and a description of how the operating limits will be determined;
(vi) If you request to monitor an alternative operating parameter pursuant to § 63.8, you must also include:
(A) A description of the parameter(s) to be monitored and an explanation of the criteria used to select the parameter(s); and
(B) A description of the methods and procedures that will be used to demonstrate that the parameter indicates proper operation of the control device; the frequency and content of monitoring, reporting, and recordkeeping requirements; and a demonstration, to the satisfaction of the applicable regulatory authority, that the proposed monitoring frequency is sufficient to represent control device operating conditions; and
(vii) A demonstration that compliance with each of the applicable emission limit(s) will be achieved under representative operating conditions.
(3) The regulatory authority shall review and approve or disapprove the plan according to the following criteria:
(i) Whether the content of the plan includes all of the information specified in paragraph (g)(2) of this section; and
(ii) Whether the plan presents sufficient information to determine that compliance will be achieved and maintained.
(4) The applicable regulatory authority shall not approve an emission averaging implementation plan containing any of the following provisions:
(i) Any averaging between emissions of differing pollutants or between differing sources; or
(ii) The inclusion of any emission source other than an existing unit in the same source category.
(h) At all times, you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator that may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.
7. Section 63.1624 is added to read as follows:
(a)
(1) If you are complying with the standard specified in § 63.1623(b)(1), you must prepare and operate according to a process fugitives ventilation plan for each shop building.
(2) You prepare a process fugitives ventilation schematic for each shop building indicating duct size and location, enclosure and hood sizes and locations, control device types, size and locations, and exhaust locations should be developed. The process fugitives ventilation system schematic must be annotated with the location and size of each shop building air supply unit and each shop building exhaust fan.
(3) You must conduct a baseline survey to establish actual air flow and static pressure values before and after each emission control device and in each branch of the process ventilation system after each enclosure or hood. You must also determine actual air flow
(4) You must repeat the baseline survey at least every 5 years or following significant ventilation system changes.
(5) The process fugitives ventilation plan must contain a description of each enclosure and hood with explanation demonstrating that adequate control of the process source is being achieved or actions planned to improve performance.
(6) The process fugitives ventilation plan must be adequate to ensure that the building is continuously maintained at a negative pressure of at least 0.007 inches of water.
(7) The process fugitives ventilation plan must identify critical maintenance actions, schedule to complete, and verification record of completion.
(8) You must submit a copy of the process fugitives ventilation plan to the designated permitting authority on or before the applicable compliance date for the affected source as specified in § 63.1621. The requirement for you to operate the facility according to a written process fugitives ventilation plan must be incorporated in the operating permit for the facility that is issued by the designated permitting authority under part 70 of this chapter.
(b)
(1) You must prepare, and at all times operate according to, an outdoor fugitive dust control plan that describes in detail the measures that will be put in place to control outdoor fugitive dust emissions from the individual fugitive dust sources at the facility.
(2) You must submit a copy of the outdoor fugitive dust control plan to the designated permitting authority on or before the applicable compliance date for the affected source as specified in § 63.1621. The requirement for you to operate the facility according to a written outdoor fugitive dust control plan must be incorporated in the operating permit for the facility that is issued by the designated permitting authority under part 70 of this chapter.
(3) You are permitted to use existing manuals that describe the measures in place to control outdoor fugitive dust sources required as part of a State implementation plan or other federally enforceable requirement for particulate matter to satisfy the requirements of paragraph (b)(1) of this section.
8. Section 63.1625 is added to read as follows:
(a)
(1) All performance tests must be conducted according to the requirements in § 63.7 of subpart A.
(2) Each performance test must consist of three separate and complete runs using the applicable test methods.
(3) Each run must be conducted under conditions that are representative of normal process operations.
(4) Performance tests conducted on air pollution control devices serving electric arc furnaces must be conducted such that at least one tapping period, or at least 20 minutes of a tapping period, whichever is less, is included in at least two of the three runs. The sampling time for each run must be at least as long as three times the average tapping period of the tested furnace, but no less than 60 minutes.
(5) You must conduct the performance tests specified in paragraph (c) of this section under such conditions as the Administrator specifies based on representative performance of the affected source for the period being tested. Upon request, you must make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(b) Test methods. The following test methods in appendices of part 60 or 63 of this chapter or as specified elsewhere must be used to determine compliance with the emission standards.
(1) Method 1 of Appendix A-1 of 40 CFR part 60 to select the sampling port location and the number of traverse points.
(2) Method 2 of Appendix A-1 of 40 CFR part 60 to determine the volumetric flow rate of the stack gas.
(3)(i) Method 3A or 3B of Appendix A-2 of 40 CFR part 60 (with integrated bag sampling) to determine the outlet stack and inlet oxygen and CO
(ii) You must measure CO
(iii) As an alternative to EPA Reference Method 3B, ASME PTC-19-10-1981-Part 10, “Flue and Exhaust Gas Analyses” may be used (incorporated by reference, see 40 CFR 63.14).
(4) Method 4 of Appendix A-3 of 40 CFR part 60 to determine the moisture content of the stack gas.
(5)(i) Method 5 of Appendix A-3 of 40 CFR part 60 to determine the particulate matter concentration of the stack gas for negative pressure baghouses and positive pressure baghouses with stacks.
(ii) Method 5D of Appendix A-3 of 40 CFR part 60 to determine particulate matter concentration and volumetric flow rate of the stack gas for positive pressure baghouses without stacks.
(iii) The sample volume for each run must be a minimum of 4.0 cubic meters (141.2 cubic feet). For Method 5 testing only, you may choose to collect less than 4.0 cubic meters per run provided that the filterable mass collected (
(6) Method 30B of Appendix A-8 of 40 CFR part 60 to measure mercury. Apply the minimum sample volume determination procedures as per the method.
(7)(i) Method 26A of Appendix A-8 of 40 CFR part 60 to determine outlet stack or inlet hydrochloric acid concentration.
(ii) Collect a minimum volume of 2 cubic meters.
(8)(i) Method 316 of Appendix A of 40 CFR part 63 to determine outlet stack or inlet formaldehyde.
(ii) Collect a minimum volume of 1.0 cubic meter.
(9) Method 9 of Appendix A-4 of 40 CFR part 60 to determine opacity. ASTM D7520-09, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” may be used (incorporated by reference, see 40 CFR 63.14) with the following conditions:
(i) During the digital camera opacity technique (DCOT) certification procedure outlined in Section 9.2 of ASTM D7520-09, you or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees and mixed backgrounds (clouds and/or a sparse tree stand).
(ii) You must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520-09.
(iii) You must follow the recordkeeping procedures outlined in § 63.10(b)(1) for the DCOT certification, compliance report, data sheets and all
(iv) You or the DCOT vendor must have a minimum of four (4) independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15 percent opacity of any one reading and the average error must not exceed 7.5 percent opacity.
(v) Use of this approved alternative does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520-09 and these requirements is on the facility, DCOT operator and DCOT vendor.
(10) Methods to determine the mercury content of manganese ore including a total metals digestion technique, SW-846 Method 3052, and a mercury specific analysis method, SW-846 Method 7471b (Cold Vapor AA) or Water Method 1631E (Cold Vapor Atomic Fluorescence).
(11) California Air Resources Board (CARB) Method 429, Determination of Polycyclic Aromatic Hydrocarbon (PAH) Emissions from Stationary Sources to determine total PAH emissions. The method is available from California Resources Board, 1102 Q Street, Sacramento, California 95814, (
(12) The owner or operator may use alternative measurement methods approved by the Administrator following the procedures described in § 63.7(f) of subpart A.
(c)
(1) You must conduct an initial performance test for air pollution control devices or vent stacks subject to § 63.1623(a) through (e) to demonstrate compliance with the applicable emission standards.
(2) You must conduct performance tests every 5 years for the air pollution control devices and vent stacks associated with the electric arc furnaces and furnace building ventilation systems. The results of these periodic tests will be used to demonstrate compliance with the emission standards in § 63.1623(a)(1) through (a)(5), (b)(1) and (b)(2), as applicable.
(3) For any air pollution control device that serves tapping emissions combined with non-furnace emissions, such as the MOR process, or equipment associated with crushing and screening, casting or ladle treatment, you must conduct a performance test at least every 5 years. The results of these tests will be used to demonstrate compliance with the emission standards in § 63.1623(c) through (e), as applicable.
(4) Compliance is demonstrated for all sources performing emissions tests if the average concentration for the three runs comprising the performance test does not exceed the standard or if you successfully comply with the emission averaging option specified in § 63.1623(f).
(5)
(i) For a wet particulate matter scrubber, you must establish the minimum liquid flow rate and pressure drop as your operating limits during the three-run performance test. If you use a wet particulate matter scrubber and you conduct separate performance tests for particulate matter, you must establish one set of minimum liquid flow rate and pressure drop operating limits. If you conduct multiple performance tests, you must set the minimum liquid flow rate and pressure drop operating limits at the highest minimum hourly average values established during the performance tests.
(ii) For a wet acid gas scrubber, you must establish the minimum liquid flow rate and pH, as your operating limits during the three-run performance test. If you use a wet acid gas scrubber and you conduct separate performance tests for hydrochloric acid, you must establish one set of minimum liquid flow rate and pH operating limits. If you conduct multiple performance tests, you must set the minimum liquid flow rate and pH operating limits at the highest minimum hourly average values established during the performance tests.
(iii) For a dry scrubber, dry sorbent injection (DSI) system or activated carbon injection system, you must establish the minimum hourly average sorbent or activated carbon injection rate, as measured during the three-run performance test as your operating limit.
(iv) For emission sources with fabric filters that choose to demonstrate continuous compliance through bag leak detection systems you must install a bag leak detection system according to the requirements in § 63.1626(d), and you must set your operating limit such that the sum duration of bag leak detection system alarms does not exceed 5 percent of the process operating time during a 6-month period.
(v) If you choose to demonstrate continuous compliance through a particulate matter CEMS, you must determine an operating limit (particulate matter concentration in mg/dscm) during performance testing for initial particulate matter compliance. The operating limit will be the average of the PM filterable results of the three Method 5 or Method 5D of Appendix A-3 of 40 CFR part 60 performance test runs. To determine continuous compliance, the hourly average PM concentrations will be averaged on a rolling 30 operating day basis. Each 30 operating day average would have to meet the PM operating limit.
(v) For any furnace stack, you must establish a weighted average mercury concentration of the manganese ore being used in the furnace during the emission test. Collect a sample of all ores used in the furnace and prepare a weighted average based on the relative mass of each type of ore used in the furnace charge.
(d)
(1)(i) If you are subject to § 63.1623(b)(2), you must conduct initial opacity observations of the shop building to demonstrate compliance with the applicable opacity standards according to § 63.6(h)(5), which addresses the conduct of opacity or visible emission observations.
(ii) You must conduct the opacity observations according to EPA Method 9 of 40 CFR part 60, Appendix A-4, for a minimum of 60 minutes to include at one, or at least 20 minutes of a tapping period, whichever is less, in at least two of the three runs to coincide with each performance test run of the associated control device.
(iii) Repeat this opacity observation at least every 5 years during the periodic performance tests required pursuant to paragraph (c)(2) of this section.
(2)(i) When demonstrating initial compliance with the shop building opacity standard, as required by paragraph (d)(1) of this section, you must simultaneously establish parameter values for one of the following: The capture system fan motor amperes and all capture system damper positions, the total volumetric flow rate to the air pollution control device and all capture system damper positions, or volumetric flow rate through each separately ducted hood that comprises the capture system.
(ii) You may petition the Administrator to reestablish these parameters whenever you can demonstrate to the Administrator's satisfaction that the electric arc furnace operating conditions upon which the
(iii) You will demonstrate compliance by installing, operating, and maintaining a digital differential pressure device that shows you are maintaining the shop building under negative pressure to at least 0.007 inches of water.
(3) You will demonstrate continuing compliance with the opacity standards by following the monitoring requirements specified in § 63.1626(h) and the reporting and recordkeeping requirements specified in § 63.1629(b)(5).
(e)
(1)
(2)
(3)
9. Section 63.1626 is added to read as follows:
(a)
(b) You must submit the standard operating procedures manual for baghouses required by paragraph (a) of this section to the Administrator or delegated authority for review and approval.
(c) Unless the baghouse is equipped with a bag leak detection system, the procedures that you specify in the standard operating procedures manual for inspections and routine maintenance must, at a minimum, include the requirements of paragraphs (c)(1) and (c)(2) of this section.
(1) You must observe the baghouse outlet on a daily basis for the presence of any visible emissions.
(2) In addition to the daily visible emissions observation, you must conduct the following activities:
(i) Weekly confirmation that dust is being removed from hoppers through visual inspection, or equivalent means of ensuring the proper functioning of removal mechanisms.
(ii) Daily check of compressed air supply for pulse-jet baghouses.
(iii) An appropriate methodology for monitoring cleaning cycles to ensure proper operation.
(iv) Monthly check of bag cleaning mechanisms for proper functioning through visual inspection or equivalent means.
(v) Quarterly visual check of bag tension on reverse air and shaker-type baghouses to ensure that the bags are not kinked (kneed or bent) or lying on their sides. Such checks are not required for shaker-type baghouses using self-tensioning (spring loaded) devices.
(vi) Quarterly confirmation of the physical integrity of the baghouse structure through visual inspection of the baghouse interior for air leaks.
(vii) Semiannual inspection of fans for wear, material buildup, and corrosion through visual inspection, vibration detectors, or equivalent means.
(d)
(1) For each baghouse used to control emissions from an electric arc furnace or building ventilation system, you must install, operate, and maintain a bag leak detection system according to paragraphs (d)(2) through (d)(4) of this section, unless a system meeting the requirements of paragraph (i) of this section, for a CEMS and continuous emissions rate monitoring system, is installed for monitoring the concentration of particulate matter. You may choose to install, operate and maintain a bag leak detection system for any other baghouse in operation at the facility according to paragraphs (d)(2) through (d)(4) of this section.
(2) The procedures you specified in the standard operating procedures manual for baghouse maintenance must include, at a minimum, a preventative maintenance schedule that is consistent with the baghouse manufacturer's instructions for routine and long-term maintenance.
(3) Each bag leak detection system must meet the specifications and requirements in paragraphs (d)(3)(i) through (d)(3)(viii) of this section.
(i) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 1.0 milligram per dry standard cubic meter (0.00044 grains per actual cubic foot) or less.
(ii) The bag leak detection system sensor must provide output of relative PM loadings.
(iii) The bag leak detection system must be equipped with an alarm system that will alarm when an increase in relative particulate loadings is detected over a preset level.
(iv) You must install and operate the bag leak detection system in a manner consistent with the guidance provided in “Office of Air Quality Planning and Standards (OAQPS) Fabric Filter Bag Leak Detection Guidance” EPA-454/R-98-015, September 1997 (incorporated by reference) and the manufacturer's written specifications and recommendations for installation, operation, and adjustment of the system.
(v) The initial adjustment of the system must, at a minimum, consist of establishing the baseline output by adjusting the sensitivity (range) and the averaging period of the device, and establishing the alarm set points and the alarm delay time.
(vi) Following initial adjustment, you must not adjust the sensitivity or range, averaging period, alarm set points, or alarm delay time, except as detailed in the approved standard operating procedures manual required under paragraph (a) of this section. You cannot increase the sensitivity by more than 100 percent or decrease the sensitivity by more than 50 percent over a 365-day period unless such adjustment follows a complete baghouse inspection that demonstrates that the baghouse is in good operating condition.
(vii) You must install the bag leak detector downstream of the baghouse.
(viii) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(4) You must include in the standard operating procedures manual required by paragraph (a) of this section a corrective action plan that specifies the procedures to be followed in the case of a bag leak detection system alarm. The corrective action plan must include, at a minimum, the procedures that you will use to determine and record the time and cause of the alarm as well as
(i) The procedures used to determine the cause of the alarm must be initiated within 30 minutes of the alarm.
(ii) The cause of the alarm must be alleviated by taking the necessary corrective action(s) that may include, but not be limited to, those listed in paragraphs (d)(4)(i)(A) through (d)(4)(i)(F) of this section.
(A) Inspecting the baghouse for air leaks, torn or broken filter elements, or any other malfunction that may cause an increase in emissions.
(B) Sealing off defective bags or filter media.
(C) Replacing defective bags or filter media, or otherwise repairing the control device.
(D) Sealing off a defective baghouse compartment.
(E) Cleaning the bag leak detection system probe, or otherwise repairing the bag leak detection system.
(F) Shutting down the process producing the particulate emissions.
(e) If you use a wet particulate matter scrubber, you must collect the pressure drop and liquid flow rate monitoring system data according to § 63.1629, reduce the data to 24-hour block averages and maintain the 24-hour average pressure drop and liquid flow-rate at or above the operating limits established during the performance test according to § 63.1625(c)(5)(i).
(f) [Reserved]
(g) If you use a dry scrubber, DSI sorbent injection or carbon injection, you must collect the sorbent or carbon injection rate monitoring system data for the dry scrubber, DSI or ACI according to § 63.1629, reducing the data to 24-hour block averages; and maintain the 24-hour average sorbent or carbon injection rate at or above the operating limit established during the performance test according to § 63.1625(c)(5)(iii).
(h)
(1) You must check and record the control system fan motor amperes and capture system damper positions once per shift.
(2) You must install, calibrate, and maintain a monitoring device that continuously records the volumetric flow rate through each separately ducted hood.
(3) You must install, calibrate, and maintain a monitoring device that continuously records the volumetric flow rate at the inlet of the air pollution control device and check and record the capture system damper positions once per shift.
(4) The flow rate monitoring devices must meet the following requirements:
(i) Be installed in an appropriate location in the exhaust duct such that reproducible flow rate monitoring will result.
(ii) Have an accuracy ± 10 percent over its normal operating range and be calibrated according to the manufacturer's instructions.
(5) The Administrator may require you to demonstrate the accuracy of the monitoring device(s) relative to Methods 1 and 2 of Appendix A-1 of part 60 of this chapter.
(6) Failure to maintain the appropriate capture system parameters (fan motor amperes, flow rate, and/or damper positions) establishes the need to initiate corrective action as soon as practicable after the monitoring excursion in order to minimize excess emissions.
(7) You must install, operate, and maintain a digital differential pressure monitoring system to continuously monitor each total enclosure as described in paragraphs (h)(7)(i) through (h)(7)(v) of this section.
(i) You must install and maintain a minimum of one building digital differential pressure monitoring system at each of the following three walls in the shop building:
(A) The leeward wall.
(B) The windward wall.
(C) An exterior wall that connects the leeward and windward wall at a location defined by the intersection of a perpendicular line between a point on the connecting wall and a point on its furthest opposite exterior wall, and intersecting within plus or minus ten meters of the midpoint of a straight line between the two other monitors specified. The midpoint monitor must not be located on the same wall as either of the other two monitors.
(ii) The digital differential pressure monitoring systems must be certified by the manufacturer to be capable of measuring and displaying negative pressure in the range of 0.01 to 0.2 mm mercury (0.005 to 0.11 inches of water) with a minimum accuracy of plus or minus 0.001 mm mercury (0.0005 inches of water).
(iii) You must equip each digital differential pressure monitoring system with a continuous recorder.
(iv) You must calibrate each digital differential pressure monitoring system in accordance with manufacturer's specifications at least once every 12 calendar months or more frequently if recommended by the manufacturer.
(v) You must equip the digital differential pressure monitoring system with a backup, uninterruptible power supply to ensure continuous operation of the monitoring system during a power outage.
(8) If you comply with the requirements specified in § 63.1623(b)(3), you must install, operate and maintain a continuous monitoring system for the measurement of manganese concentrations in air as specified in paragraphs (h)(8)(i) through (h)(8)(v) of this section.
(i) You must operate a minimum of two compliance monitors sufficient in location and frequency of sample collection to detect expected maximum concentrations of manganese in air due to emissions from the affected source(s) in accordance with a written plan as described in paragraph (h)(8)(ii) of this section and approved by the Administrator. The plan must include descriptions of the sampling and analytical methods used. At least one 24-hour sample must be collected from each monitor every 6 days. All records pertaining to the implementation and results of the compliance monitoring shall be kept on-site for a period of no less than 5 years from the date of generation of the record.
(ii) You must submit a written plan describing and explaining the basis for the design and adequacy of the compliance monitoring network, the sampling, sample handling and custody, analytical procedures, quality assurance procedures, recordkeeping procedures and any other related procedures, and the justification for any seasonal, background, or other data adjustments within [45 DAYS AFTER EFFECTIVE DATE OF FINAL RULE].
(iii) The Administrator at any time may require changes in, or expansion of, the monitoring program, including additional sampling and, more frequent sampling, revisions to the analytical protocols and network design.
(iv) If all rolling 10-sample average concentrations of manganese in air measured by the compliance monitoring system are less than 50 percent of the manganese concentration limits specified in § 63.1623(b)(3)(i) for 3 consecutive years, you may submit a proposed revised plan to reduce the monitoring sampling and analysis
(v) For any subsequent period, if any rolling 10-sample average manganese concentration in air measured at any monitor in the monitoring system exceeds 50 percent of the concentration limits specified in § 63.1623(b)(3), you must resume monitoring pursuant to paragraph (h)(8)(i)(A) of this section at all monitors until another 3 consecutive years of manganese concentration measurements is demonstrated to be less than 50 percent of the manganese concentration limits specified in § 63.1623(b)(3).
(i)
(j)
(1) The performance criteria and design specifications for the monitoring system equipment, including the sample interface, detector signal analyzer and data acquisition and calculations;
(2) Sampling interface location such that the monitoring system will provide representative measurements;
(3) Equipment performance checks, system accuracy audits, or other audit procedures;
(4) Ongoing operation and maintenance procedures in accordance with the general requirements of § 63.8(c)(1) and (c)(3); and
(5) Conditions that define a continuous monitoring system that is out of control consistent with § 63.8(c)(7)(i) and for responding to out of control periods consistent with § 63.8(c)(7)(ii) and (c)(8) or Appendix A to this subpart, as applicable.
(6) Ongoing recordkeeping and reporting procedures in accordance with provisions in § 63.10(c), (e)(1) and (e)(2)(i) and Appendix A to this subpart, as applicable.
(k) If you have an operating limit that requires the use of a CPMS, you must install, operate, and maintain each continuous parameter monitoring system according to the procedures in paragraphs (k)(1) through (k)(7) of this section.
(1) The continuous parameter monitoring system must complete a minimum of one cycle of operation for each successive 15-minute period. You must have a minimum of four successive cycles of operation to have a valid hour of data.
(2) Except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required monitoring system quality assurance or quality control activities (including, as applicable, system accuracy audits and required zero and span adjustments), you must operate the CMS at all times the affected source is operating. A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. You are required to complete monitoring system repairs in response to monitoring system malfunctions and to return the monitoring system to operation as expeditiously as practicable.
(3) You may not use data recorded during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or control activities in calculations used to report emissions or operating levels. You must use all the data collected during all other required data collection periods in assessing the operation of the control device and associated control system.
(4) Except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required quality monitoring system quality assurance or quality control activities (including, as applicable, system accuracy audits and required zero and span adjustments), failure to collect required data is a deviation of the monitoring requirements.
(5) You must conduct other CPMS equipment performance checks, system accuracy audits, or other audit procedures specified in your site-specific monitoring plan at least once every 12 months.
(6) You must conduct a performance evaluation of each CPMS in accordance with your site-specific monitoring plan.
(7) You must record the results of each inspection, calibration, and validation check.
(l)
(1) Use a flow sensor with a measurement sensitivity of 5 percent of the flow rate or 10 cubic feet per minute, whichever is greater,
(2) Check all mechanical connections for leakage at least every month, and
(3) Perform a visual inspection at least every 3 months of all components of the flow CPMS for physical and operational integrity and all electrical connections for oxidation and galvanic corrosion if your flow CPMS is not equipped with a redundant flow sensor.
(m)
(1) Use a flow sensor with a measurement sensitivity of 2 percent of the flow rate and
(2) Reduce swirling flow or abnormal velocity distributions due to upstream and downstream disturbances.
(n)
(1) Minimize or eliminate pulsating pressure, vibration, and internal and external corrosion and
(2) Use a gauge with a minimum tolerance of 1.27 centimeters of water or a transducer with a minimum tolerance of 1 percent of the pressure range.
(3) Perform checks at least once each process operating day to ensure pressure measurements are not obstructed (
(o)
(p)
(1) Ensure the sample is properly mixed and representative of the fluid to be measured.
(2) Check the pH meter's calibration on at least two points every 8 hours of process operation.
(q)
(1) You must conduct a performance evaluation of the PM CEMS according to the applicable requirements of § 60.13, and Performance Specification 11 at 40 CFR part 60, Appendix B of this chapter.
(2) During each PM correlation testing run of the CEMS required by Performance Specification 11 at 40 CFR part 60, Appendix B of this chapter, PM and oxygen (or carbon dioxide) collect data concurrently (or within a 30- to 60-minute period) by both the CEMS and by conducting performance tests using Method 5 or 5D at 40 CFR part 60, Appendix A-3 or Method 17 at 40 CFR part 60, Appendix A-6 of this chapter.
(3) Perform quarterly accuracy determinations and daily calibration drift tests in accordance with Procedure 2 at 40 CFR part 60, Appendix F of this chapter. Relative Response Audits must be performed annually and Response Correlation Audits must be performed every 3 years.
(4) Within 60 days after the date of completing each CEMS relative accuracy test audit or performance test conducted to demonstrate compliance with this subpart, you must submit the relative accuracy test audit data and performance test data to the EPA by successfully submitting the data electronically into the EPA's Central Data Exchange by using the Electronic Reporting Tool (see
(1) Following completion of the initial compliance demonstration where you established a weighted average mercury concentration of the manganese ore being used in the furnace during the emission test, you must determine the weighted average mercury concentration of the manganese ores used in the process on a monthly basis. If you introduce a new type of ore, you must analyze the sample according the methods specified in § 63.1625(b)(10) and factor the results into your updated weighted average mercury concentration.
(2) If the weighted average mercury concentration is more than 10 percent higher than the weighted average operating limit, and you are operating an activated carbon injection system, you must reassess the activated carbon injection rate and revise the rate according to procedures established in your CMS monitoring plan.
(3) If the weighted average mercury concentration is more than 10 percent higher than the weighted average operating limit, and you are not operating an activated carbon injection system, you must retest the control device within 30 days to demonstrate compliance with the mercury emission limit and establish a new weighted average mercury concentration and associated activated carbon injection rate.
10. Section 63.1627 is added to read as follows:
In response to an action to enforce the standards set forth in paragraph § 63.1623 you may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused by malfunction, as defined at 40 CFR 63.2. Appropriate penalties may be assessed, however, if the respondent fails to meet its burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.
(a)
(1) The excess emissions:
(i) Were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner; and
(ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and
(iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and
(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and
(2) Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and
(3) The frequency, amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions; and
(4) If the excess emissions resulted from a bypass of control equipment or a