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Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Bureau of the Public Debt, Fiscal Service, Treasury.
Final rule.
This rule increases the amount of book-entry Series EE and Series I savings bonds a person may acquire each year.
Effective January 4, 2012.
You can download this final rule at the following Internet addresses:
D. Michael Linder, Director, Division of Program Administration, Office of Retail Securities, Bureau of the Public Debt, at (304) 480-6319 or
Ann Fowler, Attorney-Adviser, David Copenhaver, Senior Attorney, Edward Gronseth, Deputy Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, at (304) 480-8692 or
This rule increases the amount of book-entry Series EE and Series I savings bonds a person may acquire each year. Prior to this change, an investor could purchase up to $5,000 each of definitive and book-entry Series EE savings bonds ($10,000 total), and $5,000 each of definitive and book-entry Series I savings bonds ($10,000 total) per person, per calendar year. However, Treasury discontinued the issuance of definitive savings bonds, effective January 1, 2012. (See 76 FR 66,855 (Oct. 28, 2011)). In order to allow investors to maintain the same level of savings that existed prior to the elimination of definitive savings bonds, this rule will permit investors to acquire a principal amount of $10,000 of book-entry Series EE savings bonds and $10,000 of book-entry Series I savings bonds per person, per calendar year. Book-entry savings bonds are offered to individuals through TreasuryDirect ®, which is an Internet-accessed, book-entry system for purchasing, holding, and conducting transactions in Treasury securities.
Bonds, Federal Reserve System, Government securities.
Bonds, Federal Reserve System, Government securities.
Bonds, Electronic funds transfer, Federal Reserve system, Government securities, Securities.
Accordingly, for the reasons set out in the preamble, 31 CFR chapter II, subchapter B, is amended as follows:
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105.
The principal amount of book-entry Series EE savings bonds that you may acquire in any calendar year is provided at § 363.52.
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105.
The principal amount of book-entry Series I savings bonds that you may acquire in any calendar year is provided at § 363.52.
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3102,
(a) The principal amount of book-entry savings bonds that you may acquire in any calendar year is limited to $10,000 for Series EE savings bonds and $10,000 for Series I savings bonds.
(b) Bonds purchased or transferred as gifts will be included in the computation of this limit for the account of the recipient for the year in which the bonds are delivered to the recipient.
(c) Bonds purchased as gifts or in a fiduciary capacity are not included in the computation for the purchaser. Bonds received due to the death of the registered owner are not included in the computation for the recipient.
(d) We reserve the right to take any action we deem necessary to adjust the excess, including the right to remove the excess bonds from your TreasuryDirect account and refund the payment price to your bank account of record using the ACH method of payment.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing approval of revisions to the San Joaquin Valley Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the
EPA has established docket number EPA-R09-OAR-2011-0547 for this action. Generally, documents in the docket for this action are available electronically at
Rynda Kay, EPA Region IX, (415) 947-4118,
Throughout this document, “we,” “us” and “our” refer to EPA.
On July 11, 2011 (76 FR 132), EPA proposed to approve the following rules into the California SIP.
We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.
EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following party.
1. Sarah Jackson, Earthjustice; letter and email dated and received August 10, 2011.
The comments and our responses are summarized below.
We disagree that the District's feasibility test is inconsistent with the CAA or EPA guidance. Neither the CAA nor EPA's implementing regulations define “technical and economic feasibility” for purposes of determining what control measures are “reasonably available,” and, as noted above, section 172(c)(1) provides considerable deference to States' determinations of what control measures are reasonably available.
In this case, the District assessed the availability of alternatives to open burning by evaluating both technological and economic feasibility.
As we have previously noted, looking at the percent of profits can provide useful information concerning the economic feasibility of particular control measures.
We also note that our evaluation of the stringency of the rule does not rest solely upon the District's assessment of economic and technical feasibility, but also takes into consideration other indicators of technical and economic feasibility.
1. 10-year analysis is used to standardize comparisons across various source categories (Example: 10-year analysis is also used for boilers, engines, and other source categories with real life spans in excess of 20-30 years).
2. Standard 10-year analysis is used by the California Air Resources Board and air districts for evaluating air pollution control economics.
3. Farms can change owners and change crops fairly frequently: For farms, periods longer than 10 years are speculative since farm viability is subject to global market forces, weather, water availability, etc.
In light of this economic uncertainty, EPA has recommended that the District continue closely monitoring the economic feasibility of sending citrus orchard removal material to biomass. In response, the District has agreed to ban the burning of citrus orchards “on a case-by-case basis when analysis indicates sufficient biomass capacity and the availability of economically feasible chipping services.”
No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 7, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(388) * * *
(i) * * *
(B) * * *
(
(
(
(
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction of final rule with comment period.
This document corrects technical errors that appeared in the final rule with comment period published in the
Marjorie Baldo, (410) 786-0378, Hospital outpatient prospective payment issues. James Poyer, (410) 786-2261, and Donald Howard, (410) 786-6764, Hospital Value-Based Purchasing (VBP) Program Issues.
In FR Doc. 2011-28612 of November 30, 2011 (76 FR 74122), (hereinafter referred to as the CY 2012 OPPS/ASC final rule with comment period), there were a number of technical errors that are identified and corrected in the Correction of Errors section below. The provisions in this correction document are effective as if they had been included in the CY 2012 OPPS/ASC final rule with comment period (76 FR 74122) appearing in the November 30, 2011
In the CY 2012 OPPS/ASC final rule with comment period, we finalized a continuation of our policy to exclude line items that were eligible for payment in the claims year but did not meet the Medicare requirements for payment (76 FR 74141). Line items that did not meet the requirements for Medicare payment were rejected or denied during claims processing. It is our longstanding policy to not use line items that were rejected or denied for payment for modeling costs under the OPPS. In reviewing the claims data used to establish the APC median costs for the CY 2012 OPPS/ASC final rule with comment period, we discovered that the trim of unpaid lines was not applied correctly. We have corrected our programming logic in the OPPS data process to apply the line item trim correctly and have recalculated the median costs for each separately paid service using the claims that result from the correctly applied trim. We note that no other changes were made to the programming logic described in the CY 2012 OPPS/ASC final (see 76 FR 74141).
The correct application of the line item based trim has an impact on the APC median costs used to establish the relative payment, which impacts the CY 2012 OPPS/ASC payment rates, copayments, outlier threshold, and impacts. Due to the APC median costs changes, we had to recalculate the budget neutral weight scaler. Using the updated unscaled relative weights, the CY 2012 budget neutrality weight scaler changed from 1.3588 to 1.3585 (see 76 FR 74189). The changes associated with the revised APC median costs and the corrected budget neutrality weight scaler have no further impact on budget neutrality, in particular, those applied to the CY 2012 conversion factor. The correct application of the line item trim changed the data used to model the CY 2012 fixed-dollar outlier threshold. Using the corrected set of claims data, the CY 2012 OPPS/ASC fixed-dollar outlier threshold changed from $1,900 to $2,025 (see 76 FR 74209).
Also, as a result of the recalculated median costs, the APCs now displays violations of the two times rule, which caused the following APC codes to be added: APC 0105 Repair/Revision/Removal of Pacemakers, AICDs and Vascular Access Devices, APC 0263, Level I Miscellaneous Radiology Procedures, and APC 0655, Insertion/Replacement/Conversion of a Permanent Dual Chamber Pacing Electrode.
In addition, the recalculated median costs caused several APCs to no longer display violations of the two times rule, which caused the following APSC codes to be removed: APC 0262 Plain Film of Teeth, APC 0341 Skin Tests and APC 0660 Level II Otorhynolaryngologic Function Tests. We are revising Table 19—Final APC Exceptions to the 2 Times Rule for CY 2012 (76 FR 74227) to reflect these changes.
Furthermore, we made changes to Table 59—Estimated Impact of the Final CY 2012 Changes for the Hospital Outpatient Prospective Payments System (76 FR 74562) and the correlating preamble language (76 FR 74570). Specifically, a hospital that had submitted a claim containing a single line for which no payment was made, is no longer represented in the data, therefore, the number of facilities whose claims are represented in the data declined from 4,161 to 4,160, and the number of hospitals declined from 3,895 to 3,894 (see 76 FR 74558). Because of the trim of lines for which no payment was made from the single procedure bills from the remaining hospitals, the number of hospitals by category, and the impact for the categories have minor changes. In addition to the minor changes to the number of hospitals and the impacts by category of hospital, the estimated increase for all facilities and all hospitals when all changes are accounted for declines from 1.9 percent to 1.8 percent because the CY 2011 threshold models as if it were paying 1.0 percent of total payment for outliers rather than 0.93 percent. Therefore, the estimated total increase in payment based on the technical corrections noted above results in a decline of 0.1 percent.
To view the revised payment rates that result from the changed median costs, we refer readers to the Addenda and supporting files that are posted on the CMS Web site at:
ASC payment rates are based on the OPPS relative payment weights for the majority of services that are provided at ASCs. Therefore, the correct application of the line item based trim also has an impact on the CY 2012 ASC relative payment weights and ASC payment rates. Due to the changes to the OPPS relative payment weights, we had to recalculate the budget neutral ASC weight scaler (see 76 FR 74447 and 74448). Using the updated scaled OPPS relative weights, the CY 2012 budget neutrality ASC weight scaler changed from 0.9466 to 0.9477 (76 FR 74448). The changes associated with the revised OPPS relative payment weights and the corrected budget neutrality CY 2012 ASC weight scaler have no impact on the CY 2012 ASC conversion factor. To view the revised ASC payment rates that result from the revised ASC relative payment weights, see the ASC Addenda that are posted on the CMS Web site at:
In addition to the incorrect application of the line item based trim, we failed to recognize that existing HCPCS code C9716 (Creations of thermal anal lesions by radiofrequency energy) was replaced with new CPT code 0288T (Anoscopy, with delivery of thermal energy to the muscle of the anal canal) (for example, for fecal incontinence). For CY 2012, the CPT Editorial Panel created new CPT code 0288T. Before CY 2012, this procedure was described by the Healthcare Common Procedure Coding System (HCPCS) as code C9716. In Addendum B of the CY 2012 OPPS/ASC final rule with comment period, both HCPCS code C9716 and 0288T were assigned to specific APCs. Specifically, HCPCS code C9716 has been assigned to APC 0150 (Level IV Anal/Rectal Procedures) and CPT code 0288T was mistakenly assigned to APC 0148 (Level I Anal/Rectal Procedures). Because HCPCS code C9716 and CPT code 0288T describe the same procedure, CMS is deleting HCPCS code C9716 on December 31, 2011, since it will be replaced with CPT code 0288T effective January 1, 2012. In addition, the APC assignment of CPT code 0288T will be corrected from APC 0148 to APC 0150 effective January 1, 2012. Since 0288T replaces C9716, it should have been assigned to the same APC that C9716 was assigned, APC 150. In addition, we neglected to reflect the inclusion of new HCPCS code G0451 (Development testing, with interpretation and report, per standardized instrument form) in
In addition, the CY 2012 Statewide Average CCRs displayed in Table 11 (76 FR 74195 through 74198) and in the Annual Policy Files section on the CMS Web site at
We are correcting an amendatory instruction in regulations text § 416.171. In the amendatory instructions for § 416.171, we inadvertently revised the entire paragraph (b). Paragraph (b) contains 3 subparagraphs, (b)(1) through (3), respectively. We intended only to revise paragraph (b) introductory text, while making no additional changes to the subparagraphs. Therefore, we are correcting this error.
Section 1886(o)(1)(C)(iii) of the Act requires the Secretary to conduct an independent analysis of appropriate minimum numbers of cases and measures for scoring under the Hospital Inpatient Value-Based Purchasing Program. In the CY 2012 OPPS/ASC final rule with comment period, we inappropriately referred to analyses performed by Brandeis University and Mathematica Policy Research together despite their slightly differing subjects and implications for CMS policies. This document corrects the erroneous references.
We ordinarily publish a notice of proposed rulemaking in the
The policies and payment methodologies finalized in the CY 2012 OPPS/ASC final rule with comment period have previously been subjected to notice and comment procedures. This correction notice merely provides technical corrections to the CY 2012 OPPS/ASC final rule with comment period that was promulgated through notice and comment rulemaking, and does not make substantive changes to the policies or payment methodologies that were finalized in the final rule with comment period. For example, to conform the document to the final policies of the CY 2012 OPPS/ASC final, this notice makes changes to revise inaccurate tabular information. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice. In addition, we believe it is important for the public to have the correct information as soon as possible and find no reason to delay the dissemination of it. For the reasons stated above, we find that both notice and comment and the 30-day delay in effective date for this correction notice are unnecessary. Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in effective date for this correction notice.
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction of final rule with comment period.
This document corrects technical errors and typographical errors in the final rule with comment period entitled “Medicare Program; Payment Policies under the Physician Fee Schedule, Five-Year Review of Work Relative Value Units, Clinical Laboratory Fee Schedule: Signature on Requisition, and Other Revisions to Part B for CY 2012” which appeared in the November 28, 2011
This correcting document is effective January 1, 2012.
In FR Doc. 2011-28597 of November 28, 2011 (76 FR 73026), the final rule with comment period entitled “Medicare Program; Payment Policies under the Physician Fee Schedule, Five-Year Review of Work Relative Value Units, Clinical Laboratory Fee Schedule: Signature on Requisition, and Other Revisions to Part B for CY 2012” (hereinafter referred to as the CY 2012 PFS final rule with comment period) there were a number of technical errors that are identified and corrected in the Correction of Errors section. Accordingly, the corrections are effective January 1, 2012.
We note that this correction notice corrects the CY 2012 PFS final rule with comment period which reflects laws in effect as of November 1, 2011. Any statutory changes to PFS payment after November 1, 2011 were not reflected in the CY 2012 PFS final rule with comment period and are therefore not reflected in this correction notice. Payment files reflecting current law as of January 1, 2012 were made available through usual CMS notices and data files.
On pages 73028 and 73208, a discussion of CPT codes 96110 (Developmental screening, with interpretation and report, per standardized instrument form) and G0451 (Development testing, with interpretation and report, per standardized instrument form) was omitted from the final rule due to an inadvertent error. We note that we had cited a discussion regarding these two codes several times throughout the preamble. We are correcting this error by including our intended discussion through this correcting document.
On page 73141, we are correcting our response to comments to accurately reflect our policy regarding CPT codes 53445 (Insertion of inflatable urethral/bladder neck sphincter, including placement of pump, reservoir, and cuff) and 54410 (Removal and replacement of all component(s) of a multi-component, inflatable penile prosthesis at the same operative session). Due to an inadvertent error, the discussion of these codes did not reflect our discussion of revisions to the times for these codes for CY 2012. We include our discussion of time policies for these codes on an interim final basis for CY 2012.
On page 73166, we are correcting an inadvertent error in Table 15: CY 2012 Work RVUs for Services Reviewed in the CY 2011 PFS Final Rule with Comment Period, the Fourth-Five Year Review, and the CY 2012 PFS Proposed Rule. This table incorrectly identified that no time change had occurred for CPT code 53445.
On pages 73172 and 73178, we are correcting Table 16: CY 2011 and AMA RUC-Recommended Physician Time and Work Values for CY 2012 to accurately reflect time values for CPT codes 23415 (Coracoacromial ligament release, with or without acromioplasty), as well as revisions to the times for 53445 and 54410 already noted. The time values for CPT code 23415 that were listed in the CY 2012 PFS final rule time file were correct, but were inadvertently left out of Table 16. The time values for CPT codes 53345 and 54410 that were listed in the CY 2012 PFS final rule time file were not correct; the time file has been corrected to reflect correct times for CPT codes 53445 and 54410, previously discussed. We note that the time file that we used to calculate RVUs for the CY 2012 PFS final rule with comment period did not reflect the correct finalized published times in Table 16 on pages 73170 through 73181 for a limited number of codes. Specifically, we also have corrected the time values in the time file for CPT codes 28725 (Arthrodesis; subtalar), 28730 (Arthrodesis, midtarsal or tarsometatarsal, multiple or transverse), 62223 (Creation of shunt; ventriculo-peritoneal, -pleural, other terminus), 65285 (Repair of laceration; cornea and/or sclera, perforating, with reposition or resection of uveal tissue), 73080 (Radiologic examination, elbow; complete, minimum of 3 views), 73610 (Radiologic examination, ankle; complete, minimum of 3 views), and 73630 (Radiologic examination, foot; complete, minimum of 3 views) to reflect the correct time values in Table 16.
On page 73173, in Table 16, we are also correcting a typographical error for CPT code 28725 (Arthrodesis; subtalar).
On page 73190, we are correcting the status indicator of molecular pathology CPT codes that are new for CY 2012. We had intended to set the status indicator to allow reporting of these codes along with the laboratory CPT codes currently used to report these services. Due to an inadvertent error identifying the appropriate status indicator for tracking purposes, the published status indicator was incorrect.
On page 73265, in our discussion of the compression system services, we are updating our references to sections of the CY 2012 PFS final rule with comment period to correspond to the corrections identified elsewhere in this correcting document.
On pages 73306 through 73309, in our discussion of the Annual Wellness Visit, we made several technical and typographical errors in summarizing and responding to comments regarding the health risk assessment (HRA).
On page 73310, in our discussion regarding personalized prevention plans as part of the annual wellness visit, we inadvertently made technical and typographical errors.
On page 73311, in our discussion regarding a response to commenters on the physician's wellness team, we inadvertently made a technical error in our description of who comprises the wellness team.
On page 73313, we are correcting a typographical error in Table 39: Final RVUs for AWV Services for HCPCS code G0438 (Annual wellness visit, includes a personalized prevention plan of service (PPPS), first visit).
We are correcting a series of Practice Expense (PE) RVUs that appeared in Addenda B and C for CPT codes 90867 (Therapeutic repetitive transcranial magnetic stimulation (TMS) treatment; initial, including cortical mapping, motor threshold determination, delivery and management), 90868 (Therapeutic repetitive transcranial magnetic stimulation (TMS) treatment; subsequent delivery and management, per session), and 90869 (Therapeutic repetitive transcranial magnetic stimulation (TMS) treatment; subsequent motor threshold re-determination with delivery management) that were incorrect as a result of a technical error. The price input for the new direct practice expense equipment item “NeuroStar TMS Therapy System” (EQ342) was incorrectly calculated. The corrected price is included in the corrected final CY 2012 direct PE database. The final PE RVUs displayed in the corrected versions of Addendum B and C reflect values resulting from the correction of this error.
We also note that because work RVUs factor into the calculation for PE RVUs, and time values factor into direct PE input values and specialty-level allocation of indirect PE, PE RVUs for CPT codes with corrected work RVUs or time values may have also changed as a result of the corrected work RVUs and time values. These changes are reflected in Addenda B and C and the direct PE database.
Further, we note that changes in PE RVUs for other codes not previously identified may occur due to various factors related to the relativity of the system including budget neutrality, changes in aggregate physician times, and adjustments to maintain PE RVU shares. These changes also are reflected in Addenda B and C. In order to account for these corrected values, we are correcting errors in Table 85: Impact of Final Rule With Comment Period and Estimated Physician Update on CY 2012 Payment for Selected Procedures.
On page 73333, in our discussion of core measures directly below Table 42, we inadvertently made a typographical error in referencing a Table number.
On page 73334, in our discussion of zero percent performance rates, we made a typographical error. Although the final requirement to not count measures with a zero percent performance rate is indicated throughout the rule, including Tables 40, 41, and 42, in a response on page 73334, we erroneously stated “only” instead of “not.”
On page 73336, in our discussion of measures groups, we made a typographical error in referencing a Table number.
On page 73337, in our summary of the CY 2012 proposed rule regarding the reporting criteria for the group practice reporting option (GPRO), we inadvertently referenced the wrong
On page 73339, in our discussion of GPROs we inadvertently made a typographical error in referencing the dates. The correct year is 2012, which is the year in which the reporting period for the 2012 Physician Quality Reporting System lies.
On page 73343, we made typographical errors in referencing Table numbers of the CY 2012 proposed rule. In addition, in our discussion of contact information, we incorrectly referenced the 2011 Physician Quality Reporting System instead of the 2012 Physician Quality Reporting System.
On page 73345, in our discussion of core measures, we inadvertently made typographical errors in referencing Table numbers.
On page 73348, in one of our responses to comments, we inadvertently made typographical errors in referencing two Table numbers.
On page 73362, in Table 47, the measure entitled “Ischemic Vascular Disease (IVD): Complete Lipid Profile and LDL Control <100” was inadvertently listed twice.
On page 73365, in Table 48, we are correcting measure numbers for several measures that were retired in 2010. Specifically, the Measure entitled “Use of Appropriate Medications for Asthma” and the Measure entitled “Smoking and Smoking and Tobacco Use Cessation, Medical Assistance: a. Advising Smokers to Quit, b. Discussing Smoking and Tobacco Use Cessation Medications, c. Discussing Smoking and Tobacco Use Cessation Strategies” were inadvertently listed with Physician Quality Reporting System numbers and should be listed as “TBD.”
On page 73368, third column, first full paragraph, we inadvertently excluded the COPD measures group as a measures group that also contains measures available for reporting as individual measures.
On page 73373, in reference to Table 56, we inadvertently excluded a footnote to indicate that the CAD measures group contained measures that are also available for reporting as individual measures.
On page 73383, in our response to commenters who urged CMS to reduce the number of GPRO measures a GPRO must report under the Physician Quality Reporting System, we inadvertently made an error in stating we finalized 30 measures available for reporting under the GPRO. As indicated in Table 71 and in the third column, first full paragraph on page 73383, we finalized 29 measures available for reporting under the GPRO.
On page 73388, second column, first full paragraph, we incorrectly referenced the first quarter of 2012 instead of the first quarter of 2013.
On page 73415, we inadvertently made a typographical error by referencing G code G8642 instead of G9642 (G8642 was the G-Code created in 2011 for the significant hardship exemption for professionals in rural areas with limited high speed Internet access).
On page 73457, In Table 85: Impact of Final Rule with Comment Period and Estimated Physician Update on CY 2012 Payment for Selected Procedures, we discuss the corrected work RVUs in section II.A.3. of this document, entitled “Errors in the PE RVUs”.
On page 73469, in our discussion of the Addenda, we inadvertently listed Addendum C as reserved.
On page 73469 of the CY 2012 PFS final rule with comment period, we noted that the Addenda A through H for the CY 2012 PFS final rule with comment period would only be available via the Internet. In this document, we note that we will be correcting the following Addenda:
• Addendum B—Relative Value Units and Related Information Used in Determining Medicare Payments for CY 2012.
• Addendum C.—Codes with Proposed RVUs Subject to Comment for CY 2012.
We are removing HCPCS code G0450 from Addendum B. This code was incorrectly included in the final rule Addenda due to a technical error. In addition, we are correcting the status indicator in Addendum B for CPT code 96110.
Additionally, due to a typographical error, we are correcting the physician work and malpractice RVUs that appeared in Addenda B and C for CPT code 90845 (Psychoanalysis). The correct physician work and malpractice RVUs were listed in the preamble text.
Due to the changes previously noted in this section and in section II.A.3. of this document, we are correcting errors in these Addenda by replacing the Addenda in their entirety. In addition, we are correcting supporting tables that are available online, such as the time file and the direct PE input database. Errors to all updated tables are a result of the technical and typographical errors identified and summarized in this correcting document. As stated in the CY 2012 PFS final rule with comment period, Addenda B and C are available online at
We ordinarily publish a notice of proposed rulemaking in the
Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the
This document merely corrects typographical and technical errors in the preamble and addenda of the CY 2012 Physician Fee Schedule final rule with comment period. The provisions of that final rule with comment period have been subjected to notice and comment procedures. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were adopted in the CY 2012 PFS final rule with comment period. As a result, the corrections made through this correcting document are intended to ensure that the CY 2012 PFS final rule with comment period accurately reflects the policies adopted in that rule.
Therefore, we find for good cause that it is unnecessary and would be contrary to the public interest to undertake further notice and comment procedures to incorporate the corrections in this document into the CY 2012 PFS final rule with comment period. For the same reasons, we find that there is good cause to waive the 30-day delay in the effective date for these corrections. Further, we believe that it is in the public interest to ensure that the CY 2012 PFS final rule with comment period accurately reflects our policies as of the date they take effect. Therefore, we find that delaying the effective date of these corrections beyond the effective date of the final rule with comment period would be contrary to the public interest. In so doing, we find good cause to waive the 30-day delay in effective date.
“
Regarding the physician time associated with CPT code 53445, in the CY 2012 PFS proposed rule (76 FR 42799 through 42800) we stated that since Medicare claims data indicate that this service is predominantly performed in the outpatient setting, that we did not believe that this service should reflect work that is typically associated with an inpatient service. In the CY 2012 PFS proposed rule, we proposed to accept the AMA RUC-recommended physician times, understanding that the AMA RUC was collecting additional information on the physician time associated with this CPT code (and CPT code 54410) through a specialty society survey. Following publication of the CY 2012 PFS proposed rule, we realized that we had not reviewed the additional specialty society survey information on physician time. After review, we do not believe it is appropriate for this service which is now predominantly furnished in the outpatient setting to continue to reflect work that is typically associated with an inpatient service. In order to ensure consistent treatment of physician time, we believe it is appropriate to apply our methodology described
For CY 2009, CPT code 54410 (Removal and replacement of all component(s) of a multi-component, inflatable penile prosthesis at the same operative session) was identified as potentially misvalued through the site-of-service anomaly screen. As detailed in the CY 2012 PFS proposed rule (76 FR 42799), for CY 2012 we proposed a work RVU of 15.18, which corresponded to the current (CY 2011) work RVU and the AMA RUC-recommended work RVU for this service. Regarding the physician time assigned to CPT code 54410, in the PFS proposed rule we proposed to remove the subsequent hospital care visit and keep the AMA RUC-recommended physician times for the other components of this service, with the understanding that the AMA RUC was collecting additional information on the physician time associated with this CPT code (and CPT code 53445). We received no public comments on our proposal for CPT code 54410.
We continue to believe that a work RVU of 15.18 appropriately reflects the physician work associated with this service. Therefore, we are assigning an interim final work RVU of 15.18 to CPT code 54410 for CY 2012. CPT code 54410 can be found in Addenda B and C to this CY 2012 PFS final rule. Following publication of the CY 2012 PFS proposed rule, we realized that we had not reviewed the additional specialty society survey information on physician time for CPT code 54410 that we had received. After reviewing the additional information, we do not believe it is appropriate for this service which is now predominantly furnished in the outpatient setting to continue to reflect work that is typically associated with an inpatient service. In order to ensure consistent and appropriate treatment of physician time, we believe it is appropriate to apply our methodology described previously to address 23-hour stay site-of-service anomalies. Therefore, on an interim final basis for CY 2012, we are removing the subsequent observation care visit, reducing the discharge management day service to one-half, and adjusting the times accordingly. We are assigning CPT code 54410 the following times on an interim final basis for CY 2012: 40 minutes pre-service evaluation, 10 minutes pre-service positioning, 15 minutes dress, scrub, and wait, 120 minutes intra-service time, 40 minutes post-service time, half of a hospital discharge management day service, 1 Level 2 established patient office or other outpatient visit, and 3 Level 3 established patient office or other outpatient visits. CMS time refinements can be found in Table 16.”
“(24) Central Nervous System Assessments/Tests (CPT Codes 96110, G0451)
For CY 2012, the CPT Editorial Panel revised the long descriptor for CPT code 96110 from (Developmental testing; limited (e.g., Developmental Screening Test II, Early Language Milestone Screen), with interpretation and report) to (Developmental screening, with interpretation and report, per standardized instrument form). With this change, we believe that the service described by CPT code 96110 is a screening service and no longer falls within the scope of benefits of the Medicare program, as defined by the Social Security Act. Therefore, for CY 2012, we assigned CPT code 96110 a procedure status indicator of N (Non-covered service. These codes are non-covered services. Medicare payment may not be made for these codes. If RVUs are shown, they are not used for Medicare payment). In order to continue to make payment under the PFS for the
Coast Guard, DHS.
Notice of policy.
The Coast Guard announces steps for implementing the 2010 amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended, (STCW) concerning hours of rest and security-related training requirements. Because the final rule implementing the 2010 amendments to the STCW will not be published before the 1 January 2012 entry into force date, there is a need to provide guidance on implementation of the amendments related to these requirements, which will impact U.S. vessels and seafarers beginning on 1 January 2012. This notice applies to all vessels subject to STCW under current regulations.
This policy is effective January 1, 2012.
This notice is available in the docket and can be viewed by going to
If you have questions on this notice, call or email Mrs. Mayte Medina, Office of Vessel Activities (CG-522), (202) 372-1406, email
The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 as amended, (STCW) sets forth minimum training and hours of rest requirements for merchant mariners. In 2007, the IMO embarked on a comprehensive review of the entire STCW Convention and STCW Code, which sets forth provisions for implementing the STCW Convention. The Parties adopted these amendments on June 25, 2010 at the STCW Diplomatic Conference in Manila, Philippines. The amendments are scheduled to enter into force for all ratifying countries on January 1, 2012. The 2010 amendments include security training and certification requirements for vessel personnel working on board vessels; and changes to the hours of rest requirements applicable to personnel working on board U.S. vessels.
The Convention is not self-implementing; therefore, the United States, as a signatory to the STCW Convention, must initiate regulatory changes to ensure full implementation of the amendments to the STCW Convention and STCW Code. The United States implements these provisions under the Convention and under the authority of United States domestic laws at United States Code titles 5, 14, 33, and 46.
The Coast Guard published a Supplemental Notice of Proposed Rulemaking (SNPRM) on August 1, 2011 (76 FR 45908), proposing changes to implement the STCW Convention and Code, to address the comments received from the public in response to the Notice of Proposed Rulemaking (NPRM) published on November 17, 2009 (74 FR 59354), and to incorporate the 2010 amendments to the STCW Convention that will come into force on January 1, 2012. The public comment period for the SNPRM ended on September 30, 2011. The Coast Guard will be publishing a final rule (FR) to implement amendments to the STCW, including the 2010 amendments, and ensure that the U.S. is meeting its obligations under the Convention. The comments received will be discussed in the final rule.
This notice applies to all vessels subject to STCW under current regulations. This includes all seagoing vessels, as defined in 46 CFR 15.1101, meaning self-propelled vessels engaged in commercial service that operate beyond the Boundary Line established by 46 CFR part 7, except those vessels that have been determined to be otherwise exempt from, or not subject to further obligation of, STCW under 46 CFR 15.103(e) and (f).
Although full implementation of the hours of rest and security training requirements necessitate regulatory changes, the Coast Guard is issuing this notice to implement mechanisms to lessen the port state control impact on United States vessels while operating abroad, and while the Coast Guard publishes the final rule.
The 2010 amendments to the STCW Convention and Code amended the rest hours requirements as follows: (1) Expanded the application for hours of work and rest periods for mariners to include all personnel with designated safety, prevention of pollution, and
Full implementation of these amendments will require regulatory changes to 46 CFR 15.1111. The Coast Guard will not be enforcing these STCW requirements until the regulations are published. Vessels operating in foreign ports are encouraged to implement these requirements to avoid any potential port state control detentions. Hours of rest for each crewmember can be documented in the vessel logbook.
The STCW Convention requires that mariners who commenced service after 1 January 2012 meet the training requirements for vessel personnel with designated security duties and security awareness, as appropriate. In addition, the STCW Convention also provides transitional provisions for mariners who started service prior to 1 January 2012. Recognizing that the implementation date is fast approaching, and that there may be practical difficulties for all seafarers with security related requirements to obtain necessary certifications and/or the necessary endorsements required in accordance with regulation VI/6 of the 2010 Manila Amendments, the IMO issued Circular STCW.7/Circ.17. The Circular provides advice for port State control officers on transitional arrangements leading up to full implementation of the 2010 Manila Amendments on 1 January 2017. The Circular also recommends that Administrations inform their port State control authorities that, until 1 January 2014, it would be sufficient to accept compliance with section 13 of the International Ship and Port Facility Security (ISPS) Code, even if a seafarer's documentation with regard to the security-related training in regulation VI/6 is not in accordance with the 2010 Manila Amendments.
Taking the information in the Circular into account, the Coast Guard has determined that the requirements in 33 CFR 104.220 (vessel personnel with security duties) and 104.225 (security training for all other personnel) meet the requirements of Section 13 of the ISPS Code. Therefore, the Coast Guard will continue to enforce 33 CFR 104.220 and 104.225, and the requirements in Section 13 of the ISPS Code.
Vessels operating in foreign ports should ensure that all personnel, except for the vessel security officer (VSOs), working on board the vessel are in possession of the appropriate course completion certificate or a company letter as proof of meeting the requirements in 33 CFR 104.220 or 104.225, and Section 13 of the ISPS Code. VSOs must hold the appropriate endorsement on their credential.
This notice is issued under authority of 5 U.S.C. 552(a), 46 U.S.C. 8304, 33 CFR part 104, 46 CFR parts 10, 11, 12, and 15, and 33 CFR 1.05-1.
Federal Trade Commission (“FTC”or “Commission”).
Extension of the deadline for filing public comments.
The Commission grants a thirty (30) day extension until February 2, 2012 for filing public comments in response to the Commission's Advance Notice of Proposed Rulemaking and request for public comment published on November 7, 2011 (“ANPR”).
Comments must be received on or before February 2, 2012.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Robert M. Frisby, Attorney, (202) 326-2098, or Edwin Rodriguez, Attorney, (202) 326-3147, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
On November 7, 2011, the Commission published its ANPR (76 FR 68690) seeking comment on the overall costs, benefits, necessity, and regulatory and economic impact of the Commission's Rules and Regulations under the Textile Fiber Products Identification Act (“Textile Rules”).
On December 20, 2011, the American Apparel and Footwear Association, the American Fiber Manufacturers Association, Inc., the Canadian Apparel Federation, the National Retail Federation, the Retail Industry Leaders Association, and the U.S. Association of Importers of Textiles and Apparel requested that the Commission extend the comment period for thirty (30) days until February 2, 2012. These six trade associations represent apparel retailers, consumer brand companies, importers, and manufacturers that have a substantial interest in the operation and enforcement of the Textile Rules' labeling provisions. They state that, to provide useful comments to the Commission, they need sufficient time to consult with and to solicit information from their member companies. They explain that the relevant executives have been largely unavailable for consultation during the November-December holiday season because it is the busiest time of year for their companies. Therefore, they request a thirty (30) day extension of the current deadline to February 2, 2012.
The input of these trade associations would likely assist the Commission in evaluating the Textile Rules' effectiveness and determining whether and how to amend the Rules. Moreover, the requested short extension of the comment period will not substantially delay the rulemaking process. The Commission recognizes that its ANPR requests comments on complex issues and believes that extending the comment period to facilitate a more complete record outweighs any harm that might result from a thirty (30) day delay. Accordingly, the Commission is extending the comment period for thirty (30) days until February 2, 2012.
Federal Trade Commission.
Extension of comment period.
In a November 28, 2011
Written comments must be received on or before February 6, 2012.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Hampton Newsome, Attorney, (202) 326-2889, Division of Enforcement, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
The Commission is extending the comment period for its ANPR on heating and cooling equipment disclosures to February 6, 2012. The Commission's November 28, 2011 ANPR (76 FR 72872) solicited comments on possible disclosures for heating and cooling equipment to help industry members
At a joint December 16, 2011 public meeting about the FTC disclosures and the DOE plan, the American Council for an Energy Efficient Economy requested that the FTC extend its comment deadline to match DOE's February 6, 2012 date. The Commission is extending the deadline as requested. The extension will ensure consistent timing in the FTC and DOE comment periods and will provide additional time for comment preparation.
By direction of the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
We are proposing to approve Section 1.11 of Colorado's procedural rules as adopted by the Air Quality Control Commission (Commission) on January 16, 1998 and submitted to EPA as a State Implementation Plan (SIP) revision on November 5, 1999. Section 1.11 specifies certain requirements regarding the composition of the Commission and disclosure by its members of potential conflicts of interest. We are also reproposing approval of a portion of Colorado's January 7, 2008 submittal to meet the “infrastructure” requirements of section 110(a)(2) of the Clean Air Act (CAA) for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS), specifically the portion intended to address the requirements of section 110(a)(2)(E)(ii) of the CAA. We previously proposed approval, 76 FR 28707, of this portion as part of our action on the January 7, 2008 submittal. This action is being taken under section 110 of the CAA.
Comments must be received on or before February 3, 2012.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2011-0963, by one of the following methods:
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Mark Komp, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6022,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The words
(iii) The initials
(iv) The words
(v) The word
EPA is proposing to fully approve Section 1.11 of Colorado's procedural rules, adopted by the State of Colorado on January 16, 1998 and submitted to EPA on November 5, 1999. The approval into Colorado's SIP of Section 1.11 will make it federally enforceable. Section 1.11 of Colorado's procedural rules mandates that the Commission have at least a majority of members that represent the public interest and do not derive a significant portion of their income from persons subject to permits or enforcement orders under Colorado's air quality regulations or the CAA. The proposed approval will also federally mandate that Commission members disclose any potential conflicts of interest that arise during their terms of membership to the other commissioners in a public meeting of the Commission.
EPA is also reproposing approval of a portion of Colorado's January 7, 2008 submittal to meet the “infrastructure” requirements of Section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. On May 18, 2011, EPA proposed approval of Colorado's submittal with respect to (among other infrastructure requirements) the requirements of Section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS. However, in a final action on July 22, 2011, 76 FR 43906, EPA did not complete approval of the submittal with respect to Section 110(a)(2)(E)(ii). In this action, EPA reproposes, for reasons stated below, to approve the January 7, 2008 submittal with respect to the requirements of Section 110(a)(2)(E)(ii) for the 1997 ozone NAAQS.
Colorado adopted revisions to its procedural rules on January 16, 1998, and submitted part of the revised procedural rules to EPA on November 5, 1999.
Separately, on January 7, 2008, Colorado provided a submittal to meet the requirements of Section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Under Section 110(a)(1) of the CAA, within three years of EPA's promulgation of a new or revised standard, states are required to make a submittal, known as an “infrastructure SIP,” to meet the requirements of sections 110(a)(1) and (a)(2). Section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements, such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS.
In its November 5, 1999, submittal, Colorado stated that Section 1.11 is the only provision in the Commission's procedural rules that the State intends to be part of the SIP and was submitted to EPA for approval. Colorado intended that all other requirements found in the procedural rules in all sections except Section 1.11 are not to be acted on as part of the SIP. As noted in the statement of basis for the Commission's adoption of section 1.11, the section is intended to satisfy the requirements of section 128 of the CAA.
Section 128 of the CAA requires SIPs to contain provisions that: (1) Any board or body which approves permits or enforcement orders under the CAA have at least a majority of its members represent the public interest and not derive any significant portion of their income from persons subject to permits or enforcement orders under the CAA; and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
Section 1.11 of Colorado's procedural rules provides that the Commission shall have at least a majority of members who represent the public interest and who do not derive a significant portion of their income from persons subject to permits or enforcement orders under Colorado's air quality regulations or under the CAA. Section 1.11 also provides that members of the Commission shall disclose any potential conflicts of interest that arise during their terms of membership to the other Commissioners in a public meeting of the Commission. The procedural rules elsewhere require that public meetings of the Commission be recorded and that the recordings are made available to the public at cost. These provisions meet the requirements of section 128 as stated above. EPA therefore proposes to approve section 1.11 of Colorado's procedural rules for inclusion into the SIP.
On May 18, 2011, EPA proposed approval of Colorado's infrastructure SIP submittal with respect to (among other infrastructure requirements) the requirements of Section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS. EPA received adverse comments on, among other things, Colorado's implementation of sections 128 and 110(a)(2)(E)(ii). As a result, in a final action on July 22, 2011, 76 FR 43906, EPA deferred action on the submittal with respect to Section 110(a)(2)(E)(ii). Section 110(a)(2)(E)(ii) requires SIPs to comply with the requirements regarding state boards under Section 128 of the CAA. As discussed above, approval of Section 1.11 of the State's procedural rules will satisfy the requirements under section 128 regarding state boards, and will therefore satisfy the requirements of Section 110(a)(2)(E)(ii), as well. EPA therefore proposes to approve Colorado's January 7, 2008, submittal with respect to the requirements of section 110(a)(2)(E)(ii), which will complete EPA's action on all portions of the State's submittal to meet infrastructure requirements for the 1997 8-hour ozone NAAQS.
Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning
We are proposing for approval Section 1.11 of Colorado's procedural rule as adopted by the Commission on January 16, 1998, and submitted to EPA on November 5, 1999. We are also reproposing approval of a portion of Colorado's January 7, 2008, submittal to meet the “infrastructure” requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS, specifically the portion intended to address the requirements of section 110(a)(2)(E)(ii) of the CAA.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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 Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does 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, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency [EPA].
Proposed rule.
EPA is proposing to adjust the allowance system controlling U.S. consumption and production of hydrochlorofluorocarbons (HCFCs) as a result of a recent court decision vacating a portion of the rule titled “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export; Final Rule.” EPA interprets the court's vacatur as applying to the part of the rule that establishes the company-by-company baselines and calendar-year allowances for HCFC-22 and HCFC-142b. Following the August 5, 2011 interim final rule allocating allowances for 2011, this action proposes to relieve the regulatory ban on production and consumption of these two chemicals following the court's vacatur by establishing company-by-company HCFC-22 and HCFC-142b baselines and allocating production and consumption allowances for 2012-2014.
Written comments on this proposed rule must be received by the EPA Docket on or before February 3, 2012, unless a public hearing is requested. Any party requesting a public hearing must notify the contact listed below under
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2011-0354, by one of the following methods:
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Luke H. Hall-Jordan by telephone at (202) 343-9591, or by email at
This rule will affect the following categories:
Do not submit confidential business information (CBI) to EPA through
When submitting comments, remember to do the following:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• 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.
• Explain why you agree or disagree with the proposal; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used in preparing your comments.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
EPA is undertaking this rulemaking as a result of the decision issued by the U.S. Court of Appeals for the District of Columbia Circuit (Court) in
The Court issued a decision on August 27, 2010, agreeing with petitioners that “the [2009] Final Rule unacceptably alters transactions the EPA approved under the 2003 Rule,” (
EPA addressed the Court's partial vacatur as it relates to 2011 in an August 5, 2011, interim final rule, “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,” (2011 Interim Final Rule). This proposed rule is a follow-on to that action, and proposes a path forward for the remainder of the regulatory period ending on December 31, 2014.
The
In 1990, as part of the London Amendment to the Montreal Protocol, the Parties identified HCFCs as “transitional substances” to serve as temporary, lower ozone depletion potential (ODP) substitutes for CFCs and other ODS. EPA similarly viewed HCFCs as “important interim substitutes that will allow for the earliest possible phaseout of CFCs and other Class I substances”
The 1992 Copenhagen Amendment created a schedule with graduated reductions and the eventual phaseout of HCFC consumption (Copenhagen, 23-25 November, 1992, Decision IV/4). Prior to a later adjustment in 2007, the schedule initially called for a 35 percent reduction of the consumption cap in 2004, followed by a 65 percent
The Copenhagen Amendment did not cap HCFC production. In 1999, the Parties created a cap on production for Non-Article 5 Parties through an amendment to the Montreal Protocol agreed by the Eleventh Meeting of the Parties (Beijing, 29 November—3 December 1999, Decision XI/5). The cap on production was set at the average of: (a) 1989 HCFC production plus 2.8 percent of 1989 CFC production, and (b) 1989 HCFC consumption plus 2.8 percent of 1989 CFC consumption. Based on this formula, the HCFC production cap for the U.S. was 15,537 ODP-weighted MT, effective January 1, 2004. This became the U.S. production baseline for HCFCs.
To further protect human health and the environment, the Parties to the Montreal Protocol adjusted the Montreal Protocol's phaseout schedule for HCFCs at the 19th Meeting of the Parties in September 2007. In accordance with Article 2(9)(d) of the Montreal Protocol, the adjustment to the phaseout schedule was effective on May 14, 2008.
As a result of the 2007 Montreal Adjustment (reflected in Decision XIX/6), the U.S. and other developed countries are obligated to reduce HCFC production and consumption 75 percent below the established baseline by 2010, rather than 65 percent as previously required. The other milestones remain the same. The adjustment also resulted in a phaseout schedule for HCFC production that parallels the consumption phaseout schedule. All production and consumption for Non-Article 5 Parties is phased out by 2030.
Decision XIX/6 also adjusted the provisions for Parties operating under paragraph 1 of Article 5 (developing countries): (1) To set HCFC production and consumption baselines based on the average 2009-2010 production and consumption, respectively; (2) to freeze HCFC production and consumption at those baselines in 2013; and (3) to add stepwise reductions of 10 percent below baselines by 2015, 35 percent by 2020, 67.5 percent by 2025, and 97.5 percent by 2030—allowing, between 2030 and 2040, an annual average of no more than 2.5 percent to be produced or imported solely for servicing existing air-conditioning and refrigeration equipment. All production and consumption for Article 5 Parties will be phased out by 2040.
In addition, Decision XIX/6 adjusted Article 2F to allow developed countries to produce “up to 10 percent of baseline levels” for export to Article 5 countries “in order to satisfy basic domestic needs” until 2020.
“4. Each Party shall ensure that for the twelve-month period commencing on 1 January 2010, and in each twelve-month period thereafter, its calculated level of consumption of the controlled substances in Group I of Annex C does not exceed, annually, twenty-five per cent of the sum referred to in paragraph 1 of this Article. Each Party producing one or more of these substances shall, for the same periods, ensure that its calculated level of production of the controlled substances in Group I of Annex C does not exceed, annually, twenty-five per cent of the calculated level referred to in paragraph 2 of this Article. However, in order to satisfy the basic domestic needs of the Parties operating under paragraph 1 of Article 5, its calculated level of production may exceed that limit by up to ten per cent of its calculated level of production of the controlled substances in Group I of Annex C as referred to in paragraph 2.
5. Each Party shall ensure that for the twelve-month period commencing on 1 January 2015, and in each twelve-month period thereafter, its calculated level of consumption of the controlled substances in Group I of Annex C does not exceed, annually, ten per cent of the sum referred to in paragraph 1 of this Article. Each Party producing one or more of these substances shall, for the same periods, ensure that its calculated level of production of the controlled substances in Group I of Annex C does not exceed, annually, ten per cent of the calculated level referred to in paragraph 2 of this Article. However, in order to satisfy the basic domestic needs of the Parties operating under paragraph 1 of Article 5, its calculated level of production may exceed that limit by up to ten per cent of its calculated level of production of the controlled substances in Group I of Annex C as referred to in paragraph 2.
6. Each Party shall ensure that for the twelve-month period commencing on 1 January 2020, and in each twelve-month period thereafter, its calculated level of consumption of the controlled substances in Group I of Annex C does not exceed zero. Each Party producing one or more of these substances shall, for the same periods, ensure that its calculated level of production of the controlled substances in Group I of Annex C does not exceed zero. However:
i. each Party may exceed that limit on consumption by up to zero point five per cent of the sum referred to in paragraph 1 of this Article in any such twelve-month period ending before 1 January 2030, provided that such consumption shall be restricted to the servicing of refrigeration and air conditioning equipment existing on 1 January 2020;
ii. each Party may exceed that limit on production by up to zero point five per cent of the average referred to in paragraph 2 of this Article in any such twelve-month period ending before 1 January 2030, provided that such production shall be restricted to the servicing of refrigeration and air conditioning equipment existing on 1 January 2020.”
The U.S. has chosen to implement the Montreal Protocol phaseout schedule on a chemical-by-chemical basis. In 1992, environmental and industry groups petitioned EPA to implement the required phaseout by eliminating the most ozone-depleting HCFCs first. Based on the available data at that time, EPA believed the U.S. could meet, and possibly exceed, the required Montreal Protocol reductions through a chemical-by-chemical phaseout that employed a “worst-first” approach focusing on certain chemicals earlier than others. In 1993, as authorized by section 606 of the CAA, the U.S. established a phaseout schedule that eliminated HCFC-141b first and would greatly restrict HCFC-142b and HCFC-22 next, followed by restrictions on all other HCFCs and ultimately a complete phaseout (58 FR 15014, March 18, 1993; 58 FR 65018, December 10, 1993).
On January 21, 2003 (68 FR 2820), EPA promulgated regulations (2003 Final Rule) to ensure compliance with the first reduction milestone in the HCFC phaseout: The requirement that by January 1, 2004, the U.S. reduce HCFC consumption by 35 percent and freeze HCFC production. In the 2003 Final Rule, EPA established chemical-specific consumption and production baselines for HCFC-141b, HCFC-22, and HCFC-142b for the initial regulatory period ending December 31, 2009. Section 601(2) states that EPA may select “a representative calendar year” to serve as the company baseline for HCFCs. In the 2003 Final Rule, EPA concluded that because the entities eligible for allowances had differing production and import histories, no single year was representative for all companies. Therefore, EPA assigned an individual consumption baseline year to each company by selecting its highest ODP-weighted consumption year from among the years 1994 through 1997.
The 2003 Final Rule apportioned production and consumption baselines to each company in amounts equal to the amounts in the company's highest “production year” or “consumption year,” as described above. It completely phased out the production and import of HCFC-141b by granting 0 percent of that substance's baseline for production and consumption in the table at 40 CFR 82.16. EPA did, however, create a petition process to allow applicants to request small amounts of HCFC-141b beyond the phaseout. The 2003 Final Rule also granted 100 percent of the baselines for production and consumption of HCFC-22 and HCFC-142b for each of the years 2003 through 2009. EPA was able to allocate allowances for HCFC-22 and HCFC-142b at 100 percent of baseline because, in light of the concurrent complete phaseout of HCFC-141b, the allocations for HCFC-22 and HCFC-142b, combined with projections for consumption of all other HCFCs, remained below the 2004 cap of 65 percent of the U.S. baseline.
EPA allocates allowances for specific years; they are valid between January 1 and December 31 of a given control period (
In the U.S., an allowance is the unit of measure that controls production and consumption of ODS. EPA establishes company-by-company baselines (also known as “baseline allowances”) and allocates calendar-year allowances equal to a percentage of the baseline for specified control periods. A calendar-year allowance represents the privilege granted to a company to produce or import one kilogram (not ODP-weighted) of the specific substance. EPA allocates two types of calendar-year allowances—production allowances and consumption allowances. “Production allowance” and “consumption allowance” are defined at section 82.3. To produce an HCFC for which allowances have been allocated, an allowance holder must expend both production and consumption allowances. To import an HCFC for which allowances have been allocated, an allowance holder must expend consumption allowances. An allowance holder exporting HCFCs for which it has expended consumption allowances may obtain a refund of those consumption allowances upon submittal of proper documentation to EPA.
Since EPA is implementing the phaseout on a chemical-by-chemical basis, it allocates and tracks production and consumption allowances on an absolute kilogram basis for each chemical. Upon EPA approval, an allowance holder may transfer calendar-year allowances of one type of HCFC for calendar-year allowances of another type of HCFC, with transactions weighted according to the ODP of the chemicals involved. Pursuant to section 607 of the CAA, EPA applies an offset to each HCFC transfer by deducting 0.1 percent from the transferor's allowance balance. The offset benefits the ozone layer since it “results in greater total reductions in the production in each year of * * * class II substances than would occur in that year in the absence of such transactions” (42 U.S.C. 7671f).
The U.S. remained comfortably below the aggregate HCFC cap through 2009. The 2003 Final Rule announced that EPA would allocate allowances for 2010-2014 in a subsequent action and that those allowances would be lower in aggregate than for 2003-2009, consistent with the next stepwise reduction for HCFCs under the Montreal Protocol. EPA stated its intention to determine the number of allowances that would be needed for HCFC-22 and HCFC-142b, bearing in mind that other HCFCs would also contribute to total HCFC consumption. EPA noted that it would likely achieve the 2010 reduction step by applying a percentage reduction to the HCFC-22 and HCFC-142b baselines. EPA subsequently monitored the market to estimate servicing needs and market adjustments in the use of HCFCs, including HCFCs for which EPA did not establish baselines in the 2003 Final Rule.
In the 2009 Final Rule, EPA determined both the estimated demand for HCFC-22 during the 2010-2014 regulatory period and the percentage of that estimated demand for which it was appropriate to allocate allowances. As described in section III.B. of this action, EPA determined that the percentage of the estimated demand allocated in the form of allowances should not remain constant from year to year but rather should decline on an annual basis. For 2010, EPA allocated allowances equal to 80 percent of the estimated demand for HCFC-22, concluding that reused, recycled, and reclaimed material could meet the remaining 20 percent. Under the 2009 Final Rule, the percentage of estimated demand for which there was no allocation, and therefore would need to be met through recycling and reclamation, rose from 20 percent in 2010 to 29 percent in 2014 to ensure the U.S. market would have a viable reclamation industry and could meet the 2015 stepwise reduction under the Montreal Protocol.
The determinations EPA made in the 2009 Final Rule regarding (1) the total estimated demand for HCFC-22 in 2010-2014 and (2) the percentage of that estimated demand that EPA would address through an allowance allocation were not at issue in the litigation and are unaffected by the Court's decision. As such, EPA did not revisit either determination with respect to 2011 in the 2011 Interim Final Rule (76 FR 47451), but rather relied on the existing record from the 2009 Final Rule (74 FR 66412). The 2011 Interim Final Rule established new baselines that (1) credited the 2008 inter-pollutant trades at issue in
Several sections of the CAA apply to this rulemaking. Section 605 of the CAA phases out production and consumption and restricts the use of HCFCs in accordance with the schedule set forth in that section. As discussed in the 2009 Final Rule (74 FR 66416), section 606 provides EPA authority to set a more stringent phaseout schedule than the schedule in section 605 based on an
Section 606 provides authority for EPA to promulgate regulations that establish a schedule for production and consumption that is more stringent than what is set forth in section 605 if: “(1) based on an assessment of credible current scientific information (including any assessment under the Montreal Protocol) regarding harmful effects on the stratospheric ozone layer associated with a class I or class II substance, the Administrator determines that such more stringent schedule may be necessary to protect human health and the environment against such effects, (2) based on the availability of substitutes for listed substances, the Administrator determines that such more stringent schedule is practicable, taking into account technological achievability, safety, and other relevant factors, or (3) the Montreal Protocol is modified to include a schedule to control or reduce production, consumption, or use of any substance more rapidly than the applicable schedule under this title.” It is only necessary to meet one of the three criteria. In the 2009 Final Rule, EPA determined that all three criteria had been met with respect to the schedule for phasing out production and consumption of HCFC-22 and HCFC-142b.
As noted in the 2009 Final Rule, while section 606 is sufficient authority for establishing a more stringent schedule than the section 605 phaseout schedule, section 614(b) of the CAA provides that in the case of a conflict between the CAA and the Montreal Protocol, the more stringent provision shall govern. Thus, section 614(b) requires the Agency to establish phaseout schedules at least as stringent as the schedules contained in the Montreal Protocol. To meet the 2010 stepdown requirement, EPA is continuing to allocate HCFC allowances at a level that will ensure the aggregate HCFC production and consumption will not exceed 25 percent of the U.S. baselines. For more discussion of this point, see 74 FR 66416.
Finally, section 607 addresses transfers of allowances both between companies and chemicals. EPA is further clarifying the policy and procedures applicable to permanent inter-pollutant transfers in this action, and is proposing a minor change to the regulations governing inter-pollutant transfers to provide additional clarity to stakeholders.
Certain allowance holders affected by the 2009 Final Rule filed petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit. Among other arguments, the petitioners, Arkema, Inc., Solvay Fluorides, LLC, and Solvay Solexis, Inc., contended that the rule was impermissibly retroactive because in setting the baselines for the new regulatory period, EPA did not take into account certain inter-pollutant baseline transfers that petitioners had performed during the prior regulatory period. The 2011 Interim Final Rule contained a description of those transfers and the EPA approvals of those transfers. As explained in the 2011 Interim Final Rule, the transfers at issue occurred in 2008. Solvay Solexis, Inc. submitted two Class II Controlled Substance Transfer Forms for consumption allowance transfers to Solvay Fluorides, LLC on February 15, 2008, and March 4, 2008. Arkema, Inc. submitted two Class II Controlled Substance Transfer Forms for consumption and production allowance transfers on April 18, 2008. Each company requested EPA's approval to convert HCFC-142b allowances to HCFC-22 allowances, and checked a box on the EPA transfer form indicating that “baseline” allowances would be transferred. EPA sent non-objection notices to both Solvay Solexis, Inc. and Solvay Fluorides, LLC on February 21, 2008 and March 20, 2008 and to Arkema, Inc. in April 2008. The transfer requests and EPA's approvals were attached to petitioners' court filings and are available in the docket for this action.
In the Notice of Proposed Rulemaking titled “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,” published in the
In the 2009 Final Rule, after considering comments, EPA determined that allowing inter-pollutant transfers from one regulatory period to become a part of the baseline in the next regulatory period could undermine the Agency's chemical-by-chemical phaseout approach and could encourage market manipulation. EPA also concluded that section 607 of the CAA was best read as limiting inter-pollutant transfers to those conducted on an annual basis. For these reasons, EPA did not take the 2008 inter-pollutant transfers into account in establishing the baselines for the 2009 Final Rule covering 2010-2014.
The Court issued a decision on August 27, 2010, agreeing with petitioners that “the [2009] Final Rule unacceptably alters transactions the EPA approved under the 2003 Rule” (
Because the Court vacated the rule only in part, without specifying which part or parts were vacated, EPA may adopt a reasonable interpretation of the vacatur's extent. In doing so, EPA is relying on its expertise in administering the HCFC phaseout regulations under Title VI of the CAA. First, EPA notes that the rule contains elements that were not at issue in the litigation. EPA concludes that the vacatur has no effect on allowances for any substances other than HCFC-142b and HCFC-22, since the petitioners' claims and the opinion itself discuss only those two substances. Similarly, EPA concludes that other discrete portions of the rule, such as the
The baselines for HCFC-142b and HCFC-22 were clearly at issue in the litigation and indeed are the focus of the Court's opinion. The Court found that “the Agency's refusal to account for the Petitioners' baseline transfers of inter-pollutant allowances in the Final Rule is impermissibly retroactive,” (618 F.3d at 9). Because baseline and calendar year allowances are inextricably linked,
In determining the meaning of the Court's vacatur, EPA considered whether this interpretation was consistent with what the Court intended and a good fit for the specific circumstances, which include the goals and design of the HCFC allowance program and the basic structure of the 2009 Final Rule. While this interpretation is appropriate in this instance, it is possible that another interpretation would be more appropriate in a case involving a program with different goals, design, or structure.
EPA's initial response to the Court's partial vacatur was to issue the 2011 Interim Final Rule (76 FR 47451). Through today's notice, EPA is proposing a way to address the Court's decision as it relates to the remainder of the regulatory period ending December 31, 2014. In addition, the Agency is taking comment on whether the vacatur and remand should be interpreted as applying to the 2010 allocations, and if so, how allowances might be adjusted to reflect this. See section III.B.4. for EPA's proposed approach to address 2010 allowances.
The EPA received 15 submissions from 13 commenters in response to the 2011 interim final rule. Three comments were received late. Specifically, the Agency had asked for comment on several issues relevant to HCFC-22 supply and the status of recovery and reclamation, including: (1) Previous estimates of HCFC-22 demand; (2) the amount of virgin HCFC-22 currently in inventory, available for reuse and/or waiting for import from abroad; and (3) whether there is an overall surplus of the gas. The Agency received comments directly answering these questions, along with other comments that are of relevance to this proposed rulemaking.
EPA is not providing a complete response to comments on the 2011 interim final rule in this preamble; however, EPA is acknowledging the most relevant comments here in order to highlight certain stakeholder concerns regarding the future implementation of the HCFC phaseout program. It is the Agency's responsibility to implement Title VI of the CAA, and its policy objective is to do so in a way that smoothly transitions the U.S. away from HCFCs to non-ODS alternatives. Therefore, EPA is particularly interested in stakeholder input regarding the status of HCFC-22 recovery and reclamation, because this information applies directly to previously-stated policy goals. This section notes the following three issues discussed in comments to the 2011 Interim Final Rule.
a. Economic feasibility of reclamation.
b. Economic incentives for recovery and emissions prevention.
c. Effect of virgin gas supplies on dry-shipped condensing units.
Nine commenters submitted comments requesting that EPA decrease consumption allowances for 2012-2014. Another company also supported such a decrease, as long as updated market conditions indicate there is a need to do so and all allowance holders are affected proportionally. Commenters suggested that excess supply was due to several factors. Additionally, commenters stated the price of HCFC-22 is low, indicating that virgin supplies are not constrained to the extent that the Agency had anticipated. Some commenters pointed to the unused consumption allowances for 2010 as evidence of over-supply and the need for decreasing the total number of consumption allowances.
(a)
(b)
(c)
EPA undertook an analysis to gauge whether there is a surplus of HCFC-22 and, if so, how large the surplus is. A memo in the docket for this rulemaking details EPA's analysis of the HCFC-22 market. The results indicate EPA should consider allocating between 11 to 47 percent less per year between 2012 and 2014 relative to the amounts that appeared in the 2009 Final Rule. Consequently, EPA is proposing in this rulemaking to allocate fewer HCFC-22 consumption allowances than contemplated in the 2009 Final Rule for 2012-2014 in order to promote recovery and reclamation and encourage transition to non-ODS alternatives (see section III.B. and III.C.). As stated in the 2009 Final Rule, “The Agency strongly encourages increased recovery and either recycling or reclamation of HCFC-22 * * * Recovery becomes even more important in light of the 2015 Montreal Protocol phasedown step, when the U.S. HCFC consumption cap is reduced from 3,810 ODP-weighted metric tons to 1,524 ODP-weighted metric tons,” (74 FR 66422).
Two commenters requested that EPA provide HCFC allowances to certified reclaimers. As explained in the report titled “Analysis of Equipment and Practices in the Reclamation Industry,” which is included in the docket for this rulemaking, “refrigerant reclamation refers to the reprocessing and upgrading of recovered refrigerant through such mechanisms as filtering, drying, distillation and chemical treatment in order to restore the substance to specifications outlined in the Air-Conditioning, Heating, and Refrigeration Institute (AHRI)'s Standard 700-1995.” The commenters argue increasing allocations to reclaimers would increase the amount of reclaimed HCFCs available for purchase. The comments are similar to those submitted prior to the finalization of the 2009 Final Rule, which allocated HCFC allowances for 2010-2014. EPA responded to this request at the time (74 FR 66422; Response to Comments document for the 2008 NPRM), but discusses the issue further here.
The Agency's primary concern is that providing reclaimers with allowances could foster unsustainable reclamation practices that rely on blending instead of investing in the technology to fully reclaim HCFCs. Based on the phaseout schedule and the decrease in annual allocations, reclamation through separation and distillation will be more important in 2015 when the HCFC-22 allocation must drop by at least 45 percent from 2010 levels and absolutely necessary by 2020, by which time import and production of HCFC-22 must be phased out entirely. In addition, many businesses have either found a way to secure reliable access to virgin HCFCs or have made investments to reclaim HCFCs in a sustainable way, without a direct allocation of allowances.
EPA is also concerned that providing allowances to reclaimers does not address the key structural issue that the industry and the HCFC transition are facing: The price of HCFC-22 is too low to foster reclamation and is not sending the necessary signal to move consumers to non-ODS alternatives. While providing allowances to reclaimers would likely decrease the cost to recover and reclaim HCFCs, EPA is concerned about what effect providing allowances to reclaimers would have on the market price of HCFC-22. EPA is seeking comment on whether providing allowances to reclaimers would affect the market price of HCFC-22, and what effect that price change would have on the transition away from ODS and the sustainability of the reclamation industry.
EPA continues to believe that allocating fewer allowances is the best way to foster reclamation and recovery. Thus, this proposal does not include an allocation for reclaimers. However, the Agency has included the relevant comments on the Interim Final Rule in the docket for this rulemaking and welcomes further comment on this issue from all interested parties.
One small business has informed EPA that it cannot acquire either HCFC allowances or the HCFCs it needs to manufacture its HCFC blend (see the letters from ICOR dated May 17, 2011 and September 6, 2011). The company asserts that the cap and trade system is in practice “cap and no trade,” where companies hold onto their allowances, even if they have no intention of using them. The commenter argues that this leads to artificially high prices for HCFCs and HCFC allowances. To remedy this situation, the commenter requests that EPA take unused allowances and provide those allowances to companies that either purchased HCFCs or HCFC consumption allowances in 2008 and 2009. EPA notes that the inability to acquire allowances and/or HCFCs themselves does not appear to be a widespread problem, as numerous companies have made a significant number of transfers over the last year alone, and no other company has indicated it cannot acquire HCFCs. However, EPA is taking comment on whether other companies are having difficulty acquiring HCFCs or HCFC allowances.
Some historical background may help to provide context on how EPA provided flexibility for small businesses when establishing the HCFC allocation system. In the 2003 Final Rule, published January 21, 2003, EPA assigned individual company baselines by considering the highest production and consumption years for every company between the years 1994-1997—a four year period preceding regulation of the production and import of HCFCs. “Consumption” is defined by the Clean Air Act as “the amount of that substance produced in the United States, plus the amount imported, minus the amount exported,” (42 U.S.C. 7671). A company had to be manufacturing or importing HCFCs at that time in order to be assigned a baseline. In addition, the EPA provided an exception allowing new entrants provided that they began importing after the end of 1997, but before April 5, 1999, the date the EPA published the advanced notice of proposed rulemaking for the regulatory period 2003-2009. The Agency believed that such small businesses might not have been aware of the impending rulemaking that would affect their ability to continue in the HCFC market.
In addition to the exception for late entrants made in the 2003 Final Rule, there is significant flexibility in the types of transfers companies can conduct. Companies can transfer allowances between companies and, on a temporary basis, between chemicals. A guidance memo, titled “Flexibility in the HCFC Allowance System,” describing this flexibility further is available in the docket and on EPA's Web site. Companies can also purchase HCFCs at the wholesale price, which, according to comments on the 2011 Interim Final Rule, has been decreasing. The allocation system in part was established to discourage the use of HCFCs and companies' continuation in the HCFC market. As stated in the 2003 Final Rule, “businesses that desired an
As the market continues to decrease in size, EPA does not believe that expanding the pool of allowance holders is necessary to prevent disruption of the continued servicing of existing equipment. EPA explored several options that would have expanded the number of allowance holders in the 2008 NPRM (73 FR 78867) and determined the current approach with adjustment for transfers of baseline allowances was appropriate (74 FR 66419; Response to Comments for the 2008 NPRM). Given EPA's intent to phase down, and ultimately phase out, the use of HCFCs, consistent with the requirements of the CAA and obligations under the Montreal Protocol, EPA believes it is justified in continuing to allocate only to those entities who participated in the market at the initial stages, as well as those that have entered the market by purchasing HCFC baseline allowances in accordance with the established practices. EPA does not believe that providing allowances to companies that were not importing or producing HCFCs prior to EPA regulation is appropriate at this time given the disruption it would create to the existing regulatory framework. However, in light of the large number of HCFC allowances that were not used in 2010 and the difficulty at least one company is having in getting HCFCs, EPA welcomes comments on whether an allocation to manufacturers of HCFC blends who are having difficulty acquiring HCFCs or HCFC allowances would be appropriate. Commenters supporting such an allocation should consider (1) how EPA might determine the total amount of such an allocation, (2) how EPA might determine which companies should receive allowances, (3) how EPA would verify that allowance holders are refusing to sell HCFCs and HCFC allowances, (4) how EPA might set baselines for these companies, (5) whether EPA should provide allowances in addition to the amount proposed in this rule, or as part of the amount proposed in this rule, and (6) how providing allowances to an additional set of companies would affect the U.S. transition away from HCFCs.
EPA is proposing to continue the system established in previous rulemakings (68 FR 2820, 74 FR 66412, 76 FR 47451) to address HCFC production and import in the U.S. The process works as follows for each specific HCFC: First, all the company-specific baselines listed in the tables at 40 CFR 82.17 and 82.19 are added to determine the aggregate amount of baseline production and consumption, respectively. Second, EPA determines how many consumption allowances the market needs for a given year, taking into account recycled, reused, and reclaimed material, and divides that amount by the aggregate amount of baseline allowances. The resulting percentage listed in the table at section 82.16 becomes what each company is allowed to consume in a given control period. For example, a company with 100,000 kg of HCFC-22 baseline allowances would multiply that number by the percentage allowed for the year (for example, 32 percent in 2011) to determine its calendar-year allowance is 32,000 kg. Historically, EPA has allocated the same percentage of baseline allowances for production as it does for consumption.
Specifically, EPA is proposing to (1) establish 2012-2014 company-by-company consumption and production baselines for HCFC-22 and HCFC-142b in the tables at 40 CFR 82.17 and 82.19 identical to the baselines established in the 2011 Interim Final Rule (76 FR 47468), (2) allocate company-by-company production and consumption allowances for these substances for 2012-2014 by establishing percentages of production and consumption baselines in the table at section 82.16 and (3) revise the regulatory text at 40 CFR 82.23 to make the procedure for all future inter-pollutant transfers clear. EPA will address the allocations for the control periods beyond 2014 at a later date. All aspects of the 2009 Final Rule promulgated on December 15, 2009 (74 FR 66412) that are not addressed in this proposed rule are unchanged.
Additionally, EPA notes that beginning January 1, 2015, section 605 of the CAA prohibits the use and introduction into interstate commerce of any HCFC unless it “(1) has been used, recovered and recycled; (2) is used and entirely consumed (except for trace quantities) in the production of other chemicals; or (3) is used as a refrigerant in appliances manufactured prior to January 1, 2020.” In addition, EPA's regulations at 40 CFR 82.15 restrict use and introduction into interstate commerce of HCFC-141b, HCFC-142b, and HCFC-22 beginning in 2010, with limited exceptions. If entities will need HCFCs in 2015 and beyond for uses other than the exemptions contained in section 605, they should contact EPA prior to 2013. Entities should understand that the statutory prohibition in section 605 generally will prevent EPA from accommodating such needs, with the possible exception of de minimis quantities.
In the 2009 Final Rule, EPA presented the allocation structure for HCFC-22 and HCFC-142b for the control periods 2010-2014: Allocating a percentage of the baseline production and consumption allowances. The rationale for this system is discussed further at 74 FR 66412. The Court found no fault with EPA's framework for allocating HCFCs in the 2009 Final Rule, except the aspects of the rule deemed to be retroactive,
EPA cited several reasons why it would prefer to set baselines without taking into account inter-pollutant transfers in the 2009 Final Rule (74 FR 66420), the Response to Comments document included in the record for that rulemaking, and the 2011 Interim Final Rule (76 FR 47451). However, EPA is recognizing the 2008 transfers in establishing the baselines through 2014 in accordance with the Court's decision. The Agency is providing advance notice that for the 2015-2019 regulatory period, it would consider using more recent production and import data than the 1994-1997 data used to set baselines for the first time in the 2003 Final Rule. The Agency is particularly interested in stakeholders' views on whether there would be an environmental benefit to doing so.
In the 2009 Final Rule, EPA decided to allocate HCFC-22 and HCFC-142b allowances based on the projected servicing needs for those compounds, taking into account the amount of those needs that can be met through recycling and reclamation. EPA is not changing that approach in this proposed rulemaking and continues to believe it is necessary to promote use of reused, recycled, and reclaimed material in anticipation of the 2015 phasedown step. However, EPA is proposing to allocate fewer consumption allowances for HCFC-22 relative to the 2009 Final Rule based on analysis of updated market conditions. The proposed allocation and the supporting documentation are discussed in section III.B.2. Regardless of the extent to which the total number of consumption allowances differs from the total number allocated in the 2009 Final Rule, the specific amounts allocated per company will be different than the 2009 Final Rule. In accordance with the Court's decision in
Separate from the proposed allocation change, EPA is taking comment on whether or not to provide more HCFC-22 and/or HCFC-142b consumption and/or production through this rulemaking than it did in the 2009 Final Rule as a result of the unforeseen circumstances presented by the Court's decision in
HCFC-22 is the most widely-used HCFC. The demand for its use in servicing existing equipment was the primary factor affecting EPA's allocation of production and consumption allowances of HCFCs for the current regulatory period. Prior to issuing the 2009 Final Rule and the 2009
As discussed in the 2009 Final Rule, the majority of HCFC-22 equipment that is projected to be in use from this point onward will be air-conditioning applications, including window units, packaged terminal units, unitary air-conditioning, chillers, dehumidifiers, water and ground source heat pumps, and motor vehicle air-conditioning in buses and trains. The report projected that approximately 145.6 million units of all such types of HCFC-22 air-conditioning equipment were in use in 2010, decreasing by about 41 percent in 2015 and 86 percent in 2020. In addition, approximately 3.8 million units of HCFC-22 refrigeration equipment were in use in 2010. The installed base of HCFC-22 refrigeration equipment is projected to decrease from 2010 levels by about 44 percent in 2015 and 75 percent in 2020. For more on the
EPA estimates that the servicing need for HCFC-22 will continue to decrease each year, and consistent with the 2009 Final Rule, EPA proposes to account for this by allocating a smaller amount for 2012 than was allocated for 2011. This approach is described in section III.B.3. of this action, along with more recent market data on the need for, and availability of, HCFC-22.
In the 2009 Final Rule, the Agency recognized that servicing demand can be met with a combination of newly-manufactured or imported HCFCs (virgin HCFCs) and HCFCs that have been recovered and either reused, recycled or reclaimed. Therefore, EPA did not anticipate that virgin HCFC-22 would need to be produced or imported to meet the entire HCFC-22 servicing demand in each year between 2010 and 2014. The
As explained in the preamble to the 2009 Final Rule, without year-to-year reductions in the allocations for virgin HCFC-22, the HCFC-22 market could be oversaturated, and the contribution of reused, recycled, and reclaimed refrigerant would decrease, both in the total number of kilograms and as the proportion of overall need.
EPA is particularly concerned with encouraging a smooth transition to the 2015 stepdown. At that date, the U.S. must meet a 90 percent reduction below the baseline for all HCFCs. EPA's
EPA determined in the 2009 Final Rule a level of allocation projected to meet the servicing demand over 2010-2014. In addition to EPA's request for comment on whether to address or not address 2010 allowances (see section III.B.4.), the Agency is proposing to establish lower overall HCFC-22 consumption allocation levels for 2012-2014 than those the Agency determined were appropriate in the 2009 Final Rule. The Adjustment Memo in the docket to this rulemaking discusses recent data and stakeholder feedback that indicate that demand for virgin HCFC-22 is lower than originally projected, and that the number of consumption allowances should be 11 to 47 percent lower relative to the 2009 Final Rule. Specifically, the memo examines (1) surplus inventory of HCFC-22 from past years, (2) reclaimer capacity, and (3) increased recovery and re-use of HCFC-22 from the large retail food sector. EPA is taking comment on the analysis, supporting data, and assumptions presented in the Adjustment Memo.
Since EPA is continuing to allow the use of existing HCFC-22 appliances manufactured prior to January 1, 2010, reused, recycled, and reclaimed HCFC-22 will become more valuable as the phaseout progresses. The demand for HCFC-22 to service existing equipment will provide an economic incentive to increase the quantities of recovered HCFC-22 available for reuse, recycling, and reclamation. Therefore, the Agency believes that establishing a lower aggregate HCFC-22 consumption allocation for 2012-2014 than in the 2009 Final Rule is not only justified by decreased demand and the availability of surplus inventory from past years, but also because a lower virgin supply will further incentivize recovery and reclamation. The docket for the 2009 Final Rule (EPA-HQ-OAR-2008-0496) provides information on EPA's past assumptions regarding the availability of reused, recycled and reclaimed HCFC-22 to meet servicing demand, while the Adjustment Memo to this docket discusses recent changes in the HCFC-22 market.
In the 2009 Final Rule, EPA determined it was appropriate to establish an annual step-down with the assumption that the total demand to be met from recovered HCFC-22 would equal 12,500 MT each year. This is approximately the amount EPA projected would be needed to meet the servicing demand in 2015. Using this approach, the aggregate allocation for consumption would equal approximately 40,700 MT in 2012, and decrease each year after, as shown in Table 1. These values are derived by subtracting 12,500 MT from the estimated servicing demand each year. However, in light of changes to both virgin demand and reclaimer capabilities, EPA believes that the portion of demand met by recovered HCFC-22 could range from 12,500 MT to 19,700 MT each year (see the Adjustment Memo), and that reduced demand, along with surplus inventory estimates, warrant a significantly lower total allocation for 2012, 2013 and 2014. While Table 1 shows how the total allocation in the 2009 Final Rule was determined, the Agency is now proposing to allocate between 11 and 47 percent fewer consumption allowances for 2012 to 2014. EPA will not issue HCFC-22 and HCFC-142b allowances for 2015 or later until a future rulemaking.
As the total servicing demand decreases, assuming the supply of recovered HCFCs stays at a constant level results in recovered material comprising a greater proportion of the total demand each year. Using this assumption and the projected demand level from the 2009 Final Rule, the percentage of the total servicing demand to be met with recovered material would rise from 21.6 percent of total demand in 2011 to 28.7 percent in 2014, though the total amount of recovered material needed would remain at 12,500 MT for each year. In the Adjustment Memo, EPA considers two HCFC-22 allocation scenarios for each year. The larger allocation scenario considers: (1) An annual surplus inventory drawdown of 6,000 MT; (2) the same 12,500 MT of annual recovery and reclamation used in the 2009 Final Rule; and (3) a minimum expected recovery and reuse rate of 20 percent of total demand in the large retail food sector each year. The smaller allocation scenario considers: (1) The same surplus inventory drawdown of 6,000 MT; (2) an annual reclamation amount of 19,700 MT, or 35 percent of estimated servicing demand in 2012; and (3) a maximum expected recovery and reuse rate of 70 percent of total demand in the large retail food sector. These two scenarios indicate that EPA should decrease annual allocations relative to the 2009 Final Rule by between 11 and 47 percent each year—with the exact range varying slightly year by year. As summarized in Table 4 of the Adjustment Memo, the Agency is proposing to issue HCFC-22 consumption allowances as follows: Between 25,100 and 36,200 MT in 2012 (a decrease of 11 to 38 percent); between 20,800 and 31,400 MT in 2013 (a decrease of 13 to 42 percent) and between 16,400 and 26,300 MT in 2014 (a decrease of 15 to 47 percent). As percentages of baseline, these proposed amounts correspond to allocations of 17.7 to 25.5 percent in 2012, 14.7 to 22.1 percent in 2013, and 11.6 to 18.5 percent in 2014.
In summary, the Agency is proposing to reduce consumption allowances relative to the 2009 Final Rule. The Agency is also proposing to decouple production allowances and allocate either the same amount of production as in the 2009 Final Rule or the same percentage of baseline as in the 2009 Final Rule. A memo included in the docket for this rulemaking provides an overview of the various scenarios (see the Overview Memo).
EPA's first step in addressing the Court's decision was to establish baselines for 2011 that reflected the 2008 inter-pollutant transfers that were at issue in the litigation and to allocate allowances for 2011 as a percentage of those baselines. As noted in the Interim Final Rule (76 FR 47451), EPA interprets the Court's decision as applying, at a minimum, to the baseline and calendar-year allowances for 2011-2014. The Agency is taking comment on whether to interpret the decision as applying to the 2010 allocation, and if so, how allowances in future control periods might be adjusted to reflect this. The petitioners in the case, Arkema and Solvay, have stated that EPA should “restore the allowances of which Arkema and Solvay were deprived unlawfully in 2010,” or “provide a method to compensate Arkema and Solvay for year 2010 allowances that rightfully should have been available” (February 4, 2011 letter to Drusilla Hufford, EPA, from William Hamel, Arkema, and March 7, 2011 letter to Drusilla Hufford, EPA, from Don Magid, Solvay, both available in the docket for this rulemaking). As a result of these requests, EPA is considering whether to grant additional allowances for all companies that would have received higher allocations in 2010 if the 2008 inter-pollutant transfers had been reflected in the baselines published in the 2009 Final Rule. The companies affected, and the additional allowances they would have received (hereinafter described as “recoupment allowances”), are included in Table 2, below.
EPA is taking comment on four possible options with regard to this issue: (1) Providing recoupment allowances in 2013 in addition to the aggregate level of production and consumption specified in the 2009 Final Rule; (2) allocating recoupment allowances over two years (2013-2014) in addition to the aggregate level of production and consumption specified in the 2009 Final Rule; (3) allocating recoupment allowances from the aggregate level of production and consumption specified in the 2009 Final Rule over two years (2013-2014); and (4) treating missed allowances from 2010 as impossible to recoup. EPA is also taking comment on: (1) Whether it should provide recoupment for HCFC-22 and HCFC-142b, or just HCFC-22 allowances; and (2) whether it should provide recoupment for production and consumption, or just consumption allowances. EPA is seeking comment on these two points because: (1) The Court's decision only addresses the losses of the petitioners Arkema and Solvay, who appear to be most concerned with recoupment for HCFC-22 allowances; (2) neither of the petitioners has specifically requested recoupment for production allowances; and (3) while Solvay Solexis could receive recoupment allowances for HCFC-142b production (see Table 2), it would receive nearly ten times more HCFC-142b production allowances under this proposed rule absent recoupment than the 2009 Final Rule, which could avoid the need for HCFC-142b production allowance recoupment. When considering the options included in this section, commenters should consider options 1-4 providing or not providing recoupment for HCFC-142b and providing or not providing recoupment for production allowances. Additionally, EPA recognizes that any option to provide recoupment in addition to the aggregate level of consumption is, to some extent, in tension with the proposal to decrease the aggregate allocation and might impede the intended effects of allocating fewer HCFC-22 allowances.
If EPA provides recoupment, the Agency is proposing to address this issue in addition to the proposed establishment of baselines reflecting the Court's decision on past inter-pollutant transfers, and the proposed allocation of HCFC-22 production and consumption allowances. Under each of these approaches, the U.S. would still be well below its HCFC cap under the Montreal Protocol. EPA is not proposing a recoupment option that would begin in 2012 because waiting until 2013 provides companies that may receive recoupment allowances time to prepare for the increase in calendar-year allowances.
Under option 1, each company would get the percentage of baseline listed in proposed section 82.16(a)(1). The companies listed in Table 2 would receive an additional one-time allocation in 2013 of the amount specified in the table. Granting recoupment allowances under option 1 would add 329 ODP-weighted MT of allowed HCFC consumption and 280 ODP-weighted MT of allowed HCFC production in 2013. The result is an increase in allowed HCFC consumption and production (ODP-weighted) by 17 percent and 15 percent, respectively, beyond that allowed in the 2009 Final Rule, assuming constant levels of overall consumption and production. While the number of allowances would be higher in 2013 than envisioned in the 2009 Final Rule, it would not increase environmental damage during the regulatory period from 2010-2014 relative to the projections in the 2009 Final Rule: Approximately 425 ODP-weighted MT of HCFC consumption allowances and approximately 930 ODP-weighted MT of HCFC production allowances were not used by allowance holders in 2010 (source: EPA's ODS Tracking System). This one-year increase in allowances in 2013 would keep the aggregate level of consumption and production for 2010-2014 below the level envisioned in the 2009 Final Rule. Since the 2014 allocation would be unchanged from (or less than) the 2009 Final Rule level, option 1 could be preferable to a two-year recoupment option because it could smooth the transition to the 2015 stepdown under the Montreal Protocol. Option 1 would also restore the companies' lost opportunity to produce or consume in 2010 without reducing the amount of allowances other companies receive further.
Option 1 is not without disadvantages. First, it would increase the number of allowances available for use in 2013, which might impede the
Under the second option, recoupment allowances would be provided over two years (2013-2014) instead of one year as in option 1. Each entity listed in Table 2 would receive half of the amount listed in the table in 2013 and 2014 in addition to the percentage of baseline as listed in proposed section 82.16(a)(1). Option 2 would increase allowed consumption and production relative to the 2009 Final Rule levels by 8 percent in 2013 and by 10 percent and 9 percent, respectively, in 2014. This options shares some of the advantages of option 1: (1) The amount allocated between 2010 and 2014 is still below the amount envisioned as total usage during that period in the 2009 Final Rule when taking into consideration the number of allowances not used in 2010, and (2) it restores the companies' lost opportunity to produce or consume in 2010 without reducing the amount of allowances other companies would receive under no recoupment.
A significant downside to this option is that it increases the number of allowances available in 2013 and 2014, and may hamper the smooth transition in 2015 to 10 percent of baseline under the Montreal Protocol, since the decrease between the 2014 allocation and 2015 allocation for HCFC-22 would be larger under this option than in option 1. Also, like option 1, companies who would not receive recoupment would have a smaller share of all allowances compared to a no recoupment scenario.
Under option 3, EPA could provide recoupment allowances as part of the aggregate allocation level. The letters included in the docket from Don Magid, Solvay Fluorides, to Drusilla Hufford, EPA, dated March 7, 2011, and from William Hamel, Arkema, to Drusilla Hufford, EPA, dated February 4, 2011, express support for this option. One way to do this would be to allocate HCFC-22 allowances (both recoupment for 2010 and their allotted percentage of baseline for 2013 and 2014) to the companies listed in Table 2, and then allocate the remainder to all other allowance holders by revising the percentage of baseline allocated. A memo to the docket explains this approach in more detail (see “Memo: Recoupment Options”). Providing all recoupment from the allocated level in the 2009 Final Rule (or a lesser amount) in one year is not possible because there are too few allowances to provide recoupment and regular allowances for HCFC-142b. Additionally, the memo explains that if the Agency provides recoupment for HCFC-142b production allowances, the Agency will have no choice but to increase the aggregate number of production allowances.
The primary benefit of option 3 is that it keeps the overall consumption allocation at the same level (or less) as that in the 2009 Final Rule, and should therefore not negatively affect the transition to the 2015 stepdown or recovery and reclamation. However, for the years during which recoupment occurred, companies not receiving recoupment under this option would receive fewer allowances, and a smaller share of overall allowances, than under the other recoupment scenarios. The amount of allowances received by these companies also would be smaller than the amount they would have received under the 2008 Proposed Rule, and would decrease further if EPA decides to allocate less than the amounts in the 2009 Final Rule.
EPA is also considering option 4, under which the Agency would not provide recoupment allowances. As part of the evaluation of this option, EPA is considering the effect of the Court's partial vacatur and remand on the 2010 allocation. The Court issued its decision on August 27, 2010, but stayed the mandate pending resolution of any petition for rehearing. The 2009 Final Rule remained in effect during 2010. EPA's petition for rehearing was denied on January 21, 2011, and the mandate issued on February 4, 2011. While EPA has not interpreted the vacatur as nullifying 2010 allowances, EPA is considering whether to address the 2010 allocation on remand even if the partial vacatur does not apply to 2010.
EPA notes that all 2010 allowances expired on December 31, 2010 and therefore have no value in later years. See 74 FR 66415 (“EPA allocates allowances for specific years; they are valid between January 1 and December 31 of a given control period (
EPA seeks comment on whether it is possible to put the petitioners in
If EPA decides to provide recoupment, the Agency prefers option 1 because it has a minimal impact on the 2015 stepdown to 10 percent of baseline, addresses the Court's decision in the simplest manner, and does not further decrease the number of allowances companies would have received had EPA taken the 2008 inter-pollutant transfers into account in its 2009 Final Rule. EPA welcomes
Any recoupment allowances allocated for 2013 or 2014 would function in the same way as other calendar-year allowances: For example, they could be used only in the calendar year for which they were issued and would expire at the end of that calendar year.
As discussed previously, EPA is proposing to revise the tables in 40 CFR 82 that together specify the production and consumption allowances available during specified control periods. The tables at sections 82.17 and 82.19 apportion baseline production allowances and baseline consumption allowances, respectively, to individual companies for specific HCFCs during a particular regulatory period. Complementing these tables, the table at section 82.16 lists the percentage of baseline allocated to allowance holders for specific control periods. EPA is proposing to (1) retain this framework of complementary tables, (2) respond to the Court's remand by establishing baselines for 2012-2014 identical to those established in the 2011 Interim Final Rule (76 FR 47451), and (3) grant allowances based on percentages of baselines in a manner that achieves the 2010 phaseout step and lays the groundwork for the next phaseout step in 2015 (which could mean fewer 2012-2014 consumption allowances with or without fewer 2012-2014 production allowances as compared to the 2009 Final Rule). EPA has published an Overview Memo in the docket clarifying how the various options presented in this proposed rule might work separately or in combination.
In the 2009 Final Rule, 34.1 percent, 30.1 percent, and 26.1 percent of each company's HCFC-22 baselines were allocated for 2012, 2013, and 2014, respectively. As discussed above, EPA interprets the Court's vacatur as applying to the HCFC-22 and HCFC-142b allocations for each of these years. EPA intends to put in place new allocations through this rulemaking. EPA is proposing, at maximum, to allocate 28.7 percent, 25.3 percent and 21.9 percent of the HCFC-22 baseline for 2012, 2013 and 2014 consumption, respectively. EPA is also proposing an 11 to 47 percent reduction to this maximum amount for each year, which would correspond to annual consumption allowances of 17.7 to 25.5 percent of baseline in 2012, 14.7 to 22.1 percent in 2013, and 11.6 to 18.5 percent in 2014. The reduction could apply to consumption only or to consumption and production, if EPA chooses not to decouple consumption and production allowances.
The percent allocation for HCFC-142b was 0.47 percent of baseline in the 2009 Final Rule for 2012-2014. EPA is proposing to allocate 4.9 percent of HCFC-142b baseline for 2012-2014. As a reminder, the percentages allocated for 2013 and 2014 could be different if EPA decides to provide recoupment.
The 2009 Final Rule, which did not include the 2008 transfers of HCFC-142b to HCFC-22 baseline allowances in the baselines for the next regulatory period, had a total HCFC-22 consumption baseline of 119,384 MT. EPA is reflecting the baseline transfers in section 82.17 and 82.19 in accordance with the Court's decision. As a result, the aggregate HCFC-22 consumption baseline has increased to 141,865 MT. Since the aggregate HCFC-22 baseline is now higher due to the increase in the number of HCFC-22 baseline allowances for Arkema, Inc. and Solvay Fluorides, LLC, EPA is allocating a smaller percentage of the company-specific baselines (even without the proposed decrease in allocation) than in the 2009 Final Rule to achieve the same total number of HCFC-22 allowances. Thus, 40,700 MT of HCFC-22 consumption (the aggregate allocation amount for 2012 in the 2009 Final Rule) is equal to 34.1 percent of 119,384 MT (baseline) of HCFC-22 in the 2009 Final Rule, and 28.7 percent of 141,865 MT (baseline) for 2012 in this proposed rule. An 11 to 47 percent reduction in consumption allowances would change the percentage of baseline allocated to between 17.7 and 25.5 percent for 2012. The aggregate HCFC-22 production baseline is also increasing, from 110,619 MT in the 2009 Final Rule to 129,093 MT, to reflect Arkema, Inc.'s transfer of HCFC-142b baseline production allowances to HCFC-22 baseline production allowances.
The opposite is true for HCFC-142b, which had a larger aggregate consumption baseline in the proposed rule (21,089 MT), but now has a smaller consumption baseline (2,047 MT) since EPA is accounting for inter-pollutant transfers from HCFC-142b to HCFC-22. Thus, 100 MT of HCFC-142b consumption allowances (the aggregate allocation amount in each year between 2012 and 2014) is equal to 0.47 percent of 21,089 MT of HCFC-142b in the 2009 Final Rule, and 4.9 percent of 2,047 MT in this proposed rule. Aggregate HCFC-142b baseline production allowances are decreasing from 25,090 MT in the 2009 Final Rule to 9,444 MT in this proposed rule to reflect Arkema, Inc.'s transfer of HCFC-142b baseline production allowances.
In summary, EPA is proposing (1) to establish production and consumption baselines for 2012-2014 identical to those established in the 2011 Interim Final Rule (76 FR 47451) for HCFC-22 and HCFC-142b in the tables at sections 82.17 and 82.19. EPA is also proposing (2) to add new specified percentages of baseline for those substances to the table in section 82.16 for the 2012-2014 control periods. Without recoupment, the maximum proposed allocation amounts for consumption are specified in Table 1. Relative to the 2009 Final Rule, EPA is proposing to (3) allocate fewer HCFC-22 consumption allowances, the same amount or more HCFC-22 production allowances, and the same amount of HCFC-142b production and consumption allowances. If EPA chooses to provide recoupment allowances, the percentage of HCFC-22 baseline allocated to consumption could be 3.3 percent lower if EPA decides to provide recoupment from the total allocation in 2013 and 2014—regardless of the total allocation. The percentage of HCFC-22 baseline allocated to production could be 2.8 percent lower. The percentage of HCFC-142b baseline allocated to production and consumption could be 4.5 percent lower. Table 3 reflects the range of allocation percentages, including recoupment.
Consistent
For 2012, the 2009 Final Rule allocated HCFC-22 consumption allowances to meet about 76.5 percent of the servicing need, which translated into approximately 40,700 MT, or 59 percent of the total HCFC consumption cap for the 2012 control period. In this rulemaking, EPA is proposing to allocate 11 to 47 percent less for 2012 relative to the 2009 Final Rule; see the Adjustment Memo in the docket for a discussion of recent updates to estimated servicing demand and how much of that demand could reasonably be met by recovered or reclaimed refrigerant. In the 2009 Final Rule, 2013 and 2014 consumption allocations were 35,900 MT and 31,100 MT, respectively. The Agency is proposing to allocate 11 to 47 percent less for those years as well. Along with any reduction in consumption allowances, the final allocations in 2013 and 2014 will depend on which recoupment option the Agency chooses (including no recoupment). If the Agency issues recoupment, its preferred option is to allocate all recoupment (5,907 MT) in 2013 and do so in addition to the overall consumption allocation—regardless of whether the annual allocations are decreased relative to the 2009 Final Rule or not. In each year between 2012 and 2014, EPA's total HCFC consumption allocation including recoupment would be at least 36 percent below the Montreal Protocol cap, and would be below servicing demand as estimated in the
In the 2009 Final Rule, EPA decided to use the same percentages for production and consumption allocations—deriving the percentages based on estimated need for each individual HCFC. In this rulemaking, EPA is proposing to decouple the percentage of baseline allocated for production and consumption allowances. The Agency is taking comment on two options with regard to decoupling production allowances: (1) Allocating the same aggregate number of HCFC-22 production allowances as in the 2009 Final Rule for 2012-2014, and (2) using the same baseline percentages as in the 2009 Final Rule to allocate HCFC-22 production allowances in 2012-2014. The proposal to decrease consumption allowances by 11 to 47 percent relative to the 2009 Final Rule would also apply to production allowances should the Agency decide not to decouple production allowances from consumption allowances.
Under option 1, EPA would decouple the percentage of baseline allocated for production from the percentage of baseline allocated for consumption. A range of percentages is provided in Table 3. EPA would effectuate this change in its regulations by replacing the table at 40 CFR 82.16 with two tables. One would allocate a percent of baseline for consumption allowances. In the other, EPA would allocate 28.7 percent of production baseline in 2012, 25.3 percent in 2013, and 21.9 percent in 2014. The resulting allocation would provide 37,050 MT of HCFC-22 production allowances in 2012. This aggregate allocation in 2012 is approximately two percent lower than the amount allocated in the 2009 Final Rule (37,050 MT in this proposed rule vs. 37,721 MT in the 2009 Final Rule) because the aggregate amount of baseline production allowances in this rulemaking did not increase by the same relative amount as aggregate baseline consumption allowances. Because Solvay did not transfer its HCFC-142b production allowances to HCFC-22 production allowances, HCFC-22 baseline consumption allowances are 18.8 percent higher in this rule, while baseline production allowances are only 16.7 percent higher. The memo to the docket for this rulemaking titled “Effects of HCFC-22 and HCFC-142b Baseline Changes: 2009 Final Rule vs. 2011 Proposed Rule,” (Baseline Memo) discusses the slight differences in allocation amounts in more detail. Absent recoupment, EPA would allocate 32,660 MT of HCFC-22 production allowances in 2013, and 28,271 MT of HCFC-22 production allowances in 2014 under option 1.
Under option 2, EPA would also decouple the percentage of baseline allocated for production from the percentage of baseline allocated for consumption. EPA would effectuate this change in its regulations by replacing the table at 40 CFR 82.16 with two tables. One would allocate a percentage of baseline for consumption allowances. The other would allocate 34.1 percent, 30.1 percent and 26.1 percent of baseline for production allowances in 2012, 2013, and 2014, respectively, consistent with the 2009 Final Rule. This approach would still provide the petitioners in
EPA is interested in comments on a number of issues with regard to these two options. From a policy perspective, EPA is interested in comments on whether an increase in the total number of HCFC-22 production allowances would result in greater total HCFC production, either in the U.S. or globally. EPA notes that production of 1 kilogram of an HCFC requires both a production allowance and a consumption allowance (82.15(a)(1), (2)). Thus, an increase in production allowances without a corresponding increase in consumption allowances does not automatically result in greater production. The most likely scenario is that an increase in production allowances would result in greater U.S. production for export. This is because as stated in 82.20(a), “A person may obtain at any time during the control period * * * consumption allowances equivalent to the quantity of class II controlled substances that the person exported from the U.S. and its territories to a foreign state * * * when that quantity of class II controlled substance was produced in the U.S. * * * with expended consumption allowances.” In effect, current EPA regulations allow exporters to receive a refund of one consumption allowance for each kilogram they export if they show one consumption and one production allowance were expended for the material exported. Therefore, an increase in production allowances would not be expected to result in greater HCFC consumption in the U.S. As an aside, the Agency also allows for additional production for export to Article 5 countries under the Montreal Protocol through its allotment of Article 5 allowances. Until December 31, 2019, companies are allowed to produce up to 10 percent of their HCFC-22, HCFC-141b and HCFC-142b production baselines annually so long as the produced material is exported to an Article 5 country. Article 5 allowances and their proper use are described in more detail at 82.18(a)(2).
EPA welcomes comment on whether, relative to the 2009 Final Rule, an increase in the total number of production allowances, as proposed under option 2, would result in (1) an increase in U.S. consumption, (2) an increase in U.S. production, either for domestic use or for export, and/or (3) an increase in worldwide production and/or consumption of HCFCs. Moreover, given that one potential outcome might be an increase in U.S. exports of HCFC-22, EPA invites comment on the implications of such an increase for the U.S. economy and the global environment, particularly as it relates to the smooth U.S. phaseout of HCFC-22.
EPA also requests comments on whether section 605(c) would preclude allocating a different percentage of baseline for production than for consumption. Section 605(c) states that EPA must “promulgate regulations phasing out the production * * * of class II substances in accordance with [section 605],” subject to any acceleration under section 606. It further states that EPA must “promulgate regulations to insure that the consumption of class II substances in the United States is phased out and terminated in accordance with the same schedule * * * as is applicable to the phase-out and termination of production of class II substances under [Title VI].” EPA is considering three possible interpretations of the term “schedule” as referenced in section 605(c): (1) The schedule that appears on the face of section 605, which contains no deadlines until 2015; (2) the schedule that appears on the face of section 605, as accelerated under section 606; and (3) the specific allocation percentages or amounts established by EPA through rulemaking for each control period. EPA believes that the second interpretation is the most consistent with the statutory language and purpose. The Agency requested comment on this issue in the 2011 Interim Final Rule (76 FR 47451) and received four comments in favor of increasing production allowances, and two comments in opposition. Only one commenter responded specifically to EPA's interpretation of section 605, and the commenter agreed with the second interpretation presented.
In past actions, the Agency has made the initial schedule in section 605 more stringent to reflect modifications to the Montreal Protocol phaseout schedule for HCFCs. Under the 2007 Montreal Adjustment (reflected in Decision XIX/6), the U.S. is obligated to reduce HCFC production and consumption 75 percent below its aggregate baseline by 2010. EPA is not proposing to increase production to an amount that would be inconsistent with that obligation. Instead, EPA is taking comment on whether to allow production to increase relative to consumption, without encroaching on the cap.
Under option 2, the U.S. would still be below the Montreal Protocol's production cap (when all HCFCs are included) by at least 33 percent in each year, even when including recoupment (the memo to the docket entitled, “Montreal Protocol Compliance,” contains more detailed information on the implications of each option relative to the Montreal Protocol cap).
In summary, EPA seeks comment on whether to decouple production from consumption, and if so, which decoupling option to choose. EPA is also seeking comment on whether increasing production allowances above the 2009 Final Rule level, as in option 2, would negatively affect the transition to the 2015 phaseout step, under which the U.S. is obligated to reduce HCFC production and consumption 90 percent below its aggregate baseline.
Establishing HCFC-142b baseline allowances that take into account the 2008 inter-pollutant transfers discussed in section II.D. results in 2,047 MT of aggregate baseline consumption allowances and 9,444 MT of aggregate baseline production allowances. Consistent with the 2009 Final Rule, EPA is proposing to allocate 100 percent of the projected servicing need for HCFC-142b identified in that rule: 100 MT of consumption. To get to that level of consumption, EPA is proposing to allocate 4.9 percent of the aggregate consumption baseline, as reflected in the table at section 82.16. The aggregate allocation number for consumption is the same as in the 2009 Final Rule.
Using the same percentage (4.9 percent), EPA is proposing to allocate 463 MT of HCFC-142b production allowances for each control period between 2012 and 2014. The aggregate allocation for production is higher than the amount allocated in the 2009 Final Rule (463 MT in this proposed rule vs. 118 MT in the 2009 Final Rule). The proposed allocation is 292 percent higher than in the 2009 Final Rule because the aggregate amount of baseline HCFC-142b consumption allowances in this rulemaking decreased by a significantly larger amount than aggregate baseline HCFC-142b production allowances. HCFC-142b baseline consumption allowances are 90.3 percent lower in this rule, while baseline production allowances are only 62.4 percent lower. The difference between the change in production and consumption baselines is a result of Arkema trading most of its HCFC-142b production allowances, while Solvay did not. This higher amount of calendar-year production does not affect the U.S.'s ability to meet its obligations under the Montreal Protocol. The Baseline Memo in the docket for this rulemaking discusses the differences in more detail.
As discussed in section III.B.4. of this preamble, EPA is considering options to
For 2012, EPA is proposing to allocate (1) at maximum, approximately 40,700 MT of HCFC-22 consumption allowances, (2) 37,050 MT of HCFC-22 production allowances (with possible adjustments), (3) approximately 100 MT of HCFC-142b consumption allowances and (4) 463 MT of HCFC-142b production allowances. However, EPA actually allocates allowances to individual companies (
Allowances allocated for individual control periods are called “calendar-year allowances” to distinguish them from the baseline production or consumption allowances. For 2012-2014, EPA is proposing to apportion production and consumption baselines for HCFC-22 and HCFC-142b on the same basis as in the 2009 Final Rule, except that EPA is making adjustments to reflect (1) the 2008 inter-pollutant transfers of baseline allowances deemed permanent by the Court, (2) inter-company, single-pollutant transfers of baseline allowances that occurred in 2010, and (3) changes in company names that occurred after the 2009 Final Rule was signed. All of these changes were made in the 2011 Interim Final Rule (76 FR 47451), and EPA is proposing to do the same for 2012-2014. Applying the approach described above, EPA would apportion production and consumption baselines for HCFC-22 and HCFC-142b to the following entities in the following amounts:
The proposed baselines listed above are identical to the tables presented in the 2011 Interim Final Rule (76 FR 47451).
Since the Court's decision did not vacate this portion of the 2009 Final Rule, EPA is not proposing to change baselines and percentages of baseline allocated as calendar-year allowances for HCFC-141b, HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb, except to make adjustments for inter-company, single-pollutant transfers of baseline allowances, as reflected in the 2011 Interim Final Rule (76 FR 47451). In the case of HCFC-141b, EPA is continuing to allocate 0 percent of baseline for U.S. consumption and production, consistent with 40 CFR 82.16(b).
As a result of EPA's allocation process, which is largely based on projected demand for HCFC-22 and HCFC-142b, minus an amount of HCFC-22 that is assumed to be reused, recycled, or reclaimed, the total allocation is lower than the aggregate HCFC cap under the Montreal Protocol. EPA recognizes that there could be some additional need for HCFCs not specifically included in this rule. While some niche applications in the U.S. use other HCFCs, such as HCFC-21, EPA is not aware of additional need for production or import of these substances at this time, as adequate amounts appear to be in inventory. However, EPA is not foreclosing the possibility of additional production or import for these niche uses. Also, some amount of HCFC-141b will likely continue to be produced or imported via the petition process during 2012-2014. EPA believes there is sufficient room under the cap for such continued production and import. The current regulations at 40 CFR 82.15 ban the production and import of class II substances for which EPA has apportioned baseline production and consumption allowances in excess of allowances held by the producer or importer, but do not ban the production and import of class II substances for which EPA has not apportioned baseline production and consumption allowances. This rule does not alter the current regulations in that respect. The producer or importer of an HCFC that is not subject to the allowance system would be required to report to EPA consistent with the existing recordkeeping and reporting requirements. If necessary, EPA could amend the regulations to set and apportion baselines and issue allowances for these HCFCs. Therefore, retaining room under the cap could provide the benefit of accounting for unanticipated growth in HCFCs that do not have allocations or other unforeseen events. However, EPA is not reserving room under the cap for the above-described reasons. EPA is allocating allowances based on modeled demand for virgin and recovered material in preparation for the next major stepdown period under the Montreal Protocol in 2015.
The Agency is concerned about the possibility of companies undermining the HCFC chemical-by-chemical phaseout by performing inter-pollutant transfers in advance of future phaseout steps. EPA interprets the 2003 Final Rule, which established the transfer provisions at 40 CFR 82.23, as allowing only single-pollutant, inter-company transfers to be made on a permanent basis. Nevertheless, EPA recognizes that in
Sections 607(b) and (c) of the CAA address inter-pollutant and inter-company transfers of allowances, respectively. Inter-pollutant transfers are the transfer of an allowance of one substance to an allowance of another substance on an ODP-weighted basis. Inter-company transfers are transfers of allowances for the same ODS from one company to another company. Section 607(c) also authorizes inter-company transfers combined with inter-pollutant transfers, so long as the requirements of both are met. The corresponding regulatory provisions for HCFCs appear at 40 CFR 82.23.
The 2009 Final Rule updated the baselines for HCFC-22 and HCFC-142b to reflect name changes and inter-company baseline transfers,
The 2009 Final Rule also addressed four inter-pollutant baseline transfers made during the prior regulatory period (see section II.D. and the transfer forms in the docket for this action for more detail). EPA had proposed to adjust the company baselines to reflect these four inter-pollutant baseline transfers in the 2008 Proposed Rule. Eight commenters opposed, and two commenters supported, these proposed adjustments. At issue was whether the inter-pollutant baseline transfers should be part of the companies' baseline allowances in the next regulatory period.
After reviewing the comments, EPA concluded that adjusting the baselines to reflect inter-pollutant baseline transfers could create incentives for future manipulation of the allocation system in anticipation of future control periods. EPA remains concerned about the potential for such future manipulation if inter-pollutant baseline transfers during the current regulatory period change a company's baseline for future regulatory periods. For example, in 2020 EPA will no longer be issuing HCFC-22 production or consumption allowances (see section 82.16(e)). EPA expects that companies with HCFC-22 allowances would no longer be in the HCFC market at that date if they did not hold allowances for other HCFCs that may still be produced after 2020. If EPA were to allow inter-pollutant baseline transfers that carried forward into the new regulatory period, companies with HCFC-22 baselines in 2019 could convert them all to baselines for HCFC-123. Perpetuating the HCFC-22 baselines in a new form would be counter to the design of the chemical-by-chemical phaseout, under which the baseline allowances for a particular chemical are intended to drop out of the system upon the phase-out of that chemical.
As another example, in 2015, a producer or importer that previously had not participated in the HCFC-123 market could dominate that market by converting its HCFC-22 baseline in 2014 to HCFC-123 baseline. Given the different ODPs of HCFC-22 and HCFC-123 (0.055 and 0.02, respectively), converting one baseline allowance of HCFC-22 would result in 2.75 baseline allowances of HCFC-123. Also, since companies hold many more HCFC-22 baseline allowances than HCFC-123 baseline allowances, converting those HCFC-22 baseline allowances would have an overwhelming effect on the current HCFC-123 baseline allowance holders and the overall market. EPA agrees with commenters on the 2008 Proposed Rule that taking inter-pollutant baseline transfers into account in setting baselines could have the effect of moving the U.S. HCFC phasedown from a chemical-by-chemical phaseout, as established under the “worst-first” approach in the 1993 Final Rule, towards an ODP-weighted phasedown. Thus, there are important policy reasons going forward for not taking inter-pollutant transfers into account in establishing baselines for new regulatory periods.
Some commenters on the 2008 Proposed Rule stated that modifying the baselines by taking into account inter-pollutant transfers would be contrary to the CAA. One commenter argued that section 607 of the CAA allows EPA to approve inter-pollutant transfers of allowances only on a year-to-year basis. That commenter pointed to language in section 607(b) stating that EPA regulations are to permit “a production allowance for a substance for any year to be transferred for a production allowance for another substance for the same year on an ozone depletion weighted basis.” The commenter also discussed the legislative history of the 1990 CAA Amendments.
EPA does not agree with the commenter that the language of section 607(b) is clear on its face. However, where the statutory language is ambiguous, EPA has discretion to choose a reasonable interpretation of that language. EPA determined in the 2009 Final Rule that section 607(b) is best read as permitting only year-by-year inter-pollutant transfers. EPA continues to believe that this is the best interpretation of the statutory language. Section 607(b) states that EPA's rules are to permit “a production allowance for a substance for any year to be transferred for a production allowance for another substance for the same year.” This language emphasizes the year-by-year nature of such transactions. No parallel language appears in section 607(c). That section does, however, provide that any inter-pollutant transfers between two or more persons must meet the requirements of section 607(b).
As the Court noted, “the Agency is certainly entitled to * * * institute a program that forbids baseline inter-pollutant transfers in the future,” (
Consistent with the Court's decision regarding past inter-pollutant transfers (those conducted during the prior regulatory period), the baselines established in this action for 2012-2014 take into account the 2008 inter-pollutant baseline transfers. EPA is clarifying, however, that it has not approved any inter-pollutant transfers of baseline allowances in the current regulatory period, and for the reasons given in the 2009 Final Rule and in this action, in the future, EPA intends to approve inter-pollutant transfers only on a year-by-year basis. Thus, in the context of the allowance system for protection of stratospheric ozone, companies should not expect that any inter-pollutant transfers they conduct will affect their baselines either in the current regulatory period or any future regulatory period.
EPA proposes to revise the regulations to avoid any further dispute about the Agency's position on this issue. In addition, EPA is proposing to clarify the procedures that apply to permanent, single-pollutant transfers. Specifically, EPA proposes to add a sentence at the beginning and end of section 82.23(d) of 40 CFR Part 82, so the text reads: “(d) Permanent transfers. The procedures in paragraph (a) of this section apply to permanent inter-company transfers of baseline production allowances or baseline consumption allowances. A person receiving a permanent transfer of baseline production allowances or baseline consumption allowances (the transferee) for a specific class II controlled substance will be the person who has their baseline allowances adjusted in accordance with phaseout schedules in this subpart. No person may conduct permanent inter-pollutant transfers of baseline production allowances or baseline consumption allowances.”
Article 5 allowances for Class II substances are the privileges granted under 40 CFR 82.18(a) to produce the specified HCFC for export only to countries listed in 40 CFR Subpart A, Appendix C, Annex 4. The countries listed in that annex are developing countries whose control obligations under the Montreal Protocol are addressed in Article 5 of the treaty and hence are referred to as “Article 5 Parties.” EPA is proposing to revise the regulations at 40 CFR 82.23(b) to reflect its previously stated intent to allow inter-pollutant transfers of Article 5 allowances. The regulations currently provide clarity on inter-company (single-pollutant) transfers of Article 5 allowances in section 82.23(a) by stating “a person * * * may transfer to any other person * * * any quantity of the transferor's class II * * * Article 5 allowances for the same type of allowances * * *” While 82.23(a) specifically includes Article 5 allowances in the list of allowances that may be transferred to another entity, 82.23(b), which governs inter-pollutant transfers, makes no mention of Article 5 allowances.
Section 82.23 was promulgated as part of the 2003 Final Rule (68 FR 2820). EPA specifically discussed the inter-pollutant transfer of Article 5 allowances at 68 FR 2834 stating, “For example, after the 2003 phaseout of HCFC-141b and before 2010, a company receiving * * * Article 5 allowances for HCFC-141b could engage in inter-company transfers of those allowances, but not in inter-pollutant transfers [because no other HCFC Article 5 allowances would be available during that period]. In 2010, when * * * Article 5 allowances for HCFC-22 and HCFC-142b become available, these allowances will be transferable with the ones for HCFC-141b.” These statements indicate that the Agency intended for companies to be able to perform inter-pollutant transfers of Article 5 allowances. The omission of Article 5 allowances from section 82.23(b) appears to have been an oversight. Therefore, EPA is proposing to revise the regulations to specifically provide for the inter-pollutant transfers of Article 5 allowances through this rulemaking. As with other types of inter-pollutant transfers, these transfers would be limited in duration to a single year.
EPA is also proposing to change the text at 82.23(a)(ii) for consistency with its previously stated policy on offsets for transfers of Article 5 allowances. Section 607(a) requires that transfers of production allowances “will result in greater total reductions in the production in each year of * * * class II substances than would occur in that year in the absence of such transactions.” In a November 10, 1994,
This intent to require an offset is also reflected in certain provisions of the class II allowance system in 40 CFR 82. Section 82.23(a)(i)(G) specifically requires an offset for Article 5 allowance inter-company transfers, stating that the transfer claim must set forth: “For trades of consumption allowances, production allowances, export production allowances, or Article 5 allowances, the quantity of the 0.1 percent offset applied to the unweighted quantity traded that will be deducted from the transferor's allowance balance.” The offset is also mentioned at section 82.23(a)(iii): “In the case of transfers of * * * Article 5 allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity (in kilograms) to be converted plus 0.1 percent of that quantity.” This contrasts with section 82.23(a)(ii)(A), which states that in the case of Article 5 allowances, “EPA will reduce the transferor's balance of unexpended allowances * * * by the quantity to be transferred,” with no mention of an offset. In addition, in the introductory text for 82.23(a)(ii), Article 5 allowances are not mentioned: “The transfer claim is the quantity (in kilograms) to be transferred plus, in the case of transfers of production or consumption allowances, 0.1 percent of that quantity;” EPA is proposing to amend 82.23(a)(ii) and 82.23(a)(ii)(A) to require an offset for transfers of Article 5 allowances. This will make section 82.23(a) consistent throughout. Section 82.23(b) currently requires an offset of 0.1 percent for all inter-pollutant transfers. Thus, if EPA adds Article 5 allowances to section 82.23(b), an offset will automatically apply.
To reflect EPA's intent to allow inter-pollutant transfers of Article 5 allowances, and the requirement that an offset be deducted when an entity is transferring Article 5 allowances, the Agency is proposing to modify the regulatory text. EPA is proposing to modify the text at 40 CFR 82.23(a)(ii) to read as set forth in the regulatory text of this proposed rule.
The Agency is also proposing to modify the text at 40 CFR 82.23(b) by adding Article 5 allowances to the list of allowances that can be traded between pollutants. The text would read as set forth in the regulatory text of this proposed rule.
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” since it raises “novel legal or policy issues.” Accordingly, EPA submitted this action to the Office of Management and Budget (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.
EPA did not conduct a specific analysis of the benefits and costs associated with this action. Many previous analyses provide a wealth of information on the costs and benefits of the U.S. HCFC phaseout including:
• The 1993
• The 1999 Report
• The 2000 Memorandum
• The 2005 Memorandum
• The 2006 ICR
• The 2007 Memorandum
• The 2007 Memorandum
This action does not impose any new information collection burden. EPA already requires recordkeeping and reporting for HCFCs, and this action does not amend those provisions. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 82, subpart A under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
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. We have considered the economic impacts of this proposed rule on small entities. For purposes of assessing the impacts of this rule on small entities, a small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This action will affect the following categories:
After considering the economic impacts of this proposed rule on small entities, I certify this action will not have a significant economic impact on a substantial number of small entities as it relieves a regulatory ban on production and consumption that would otherwise apply in the wake of the Court's vacatur. EPA is continuing to allocate production and consumption allowances using the same approach described in the 2009 Final Rule with adjustments to reflect (1) 2008 inter-pollutant transfers of baseline allowances deemed permanent by the Court, (2) inter-company, single-pollutant transfers of baseline allowances that occurred in 2010, (3) changes in company names that occurred after the 2009 Final Rule was signed and (4) an updated picture on the demand for HCFC-22. EPA is not modifying the recordkeeping or reporting provisions and thus is not increasing the burden to small businesses. EPA's HCFC Phaseout Benefits and Costs Memo, included in this docket, provides a summary of previous small business analyses, as well as the most recent cost and benefit data used for the 2009 Final Rule. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. UMRA does not apply to rules that are necessary for the national security or the ratification or implementation of international treaty obligations. This rule implements the 2010 milestone for the phase-out of HCFCs under the Montreal Protocol. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This action 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. This action apportions production and consumption allowances and establishes baselines for private entities, not small governments.
Executive Order 13132, titled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This action does not have federalism implications. It does 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. This action is expected to primarily affect producers, importers, and exporters of HCFCs. Thus, the requirements of section 6 of the Executive Order do not apply.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action does not significantly or uniquely affect the communities of Indian tribal governments. It does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866. The Agency nonetheless has reason to believe that the environmental health or safety risk addressed by this action may have a disproportionate effect on children. Depletion of stratospheric ozone results in greater transmission of the sun's ultraviolet (UV) radiation to the earth's surface. The following studies describe the effects of excessive exposure to UV radiation on children: (1) Westerdahl J, Olsson H, Ingvar C. “At what age do sunburn episodes play a crucial role for the development of malignant melanoma,” Eur J Cancer 1994: 30A: 1647-54; (2) Elwood JM Japson J. “Melanoma and sun exposure: an overview of published studies,” Int J Cancer 1997; 73:198-203; (3) Armstrong BK, “Melanoma: childhood or lifelong sun exposure,” In: Grobb JJ, Stern RS Mackie RM, Weinstock WA, eds. “Epidemiology, causes and prevention of skin diseases,” 1st ed. London, England: Blackwell Science, 1997: 63-6; (4) Whiteman D., Green A. “Melanoma and Sunburn,” Cancer Causes Control, 1994: 5:564-72; (5) Heenan, PJ. “Does intermittent sun exposure cause basal cell carcinoma? A case control study in Western Australia,” Int J Cancer 1995; 60: 489-94; (6) Gallagher, RP, Hill, GB, Bajdik, CD,
This action implements the U.S. commitment to reduce the total basket of HCFCs produced and imported to a level that is 75 percent below the respective baselines. While on an ODP-weighted basis, this is not as large a step as previous actions, such as the 1996 Class I phaseout, it is one of the most significant remaining actions the U.S. can take to complete the overall phaseout of ODS and further decrease impacts on children's health from stratospheric ozone depletion.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The rule issues allowances for the production and consumption of HCFCs.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.
EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because the 2010 phaseout step increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This action continues the implementation of the U.S. commitment to reduce the total basket of HCFCs produced and imported to a level that is 75 percent below the respective baselines. While on an ODP-weighted basis, this is not as large a step as previous actions, such as the 1996 Class I phaseout, it is one of the most significant remaining actions the U.S. can take to complete the overall phaseout of ODS and further lessen the adverse human health effects for the entire population.
Environmental protection, Administrative practice and procedure, Air pollution control, Chemicals, Exports, Hydrochlorofluorocarbons, Imports.
40 CFR part 82 is proposed to be amended to read as follows:
1. The authority citation for part 82 continues to read as follows:
42 U.S.C. 7414, 7601, 7671- 7671q.
2. Amend § 82.16 by revising paragraph (a) to read as follows:
(a)
(2)
3. Amend § 82.23 by revising paragraphs (a)(ii) introductory text, (a)(ii)(A), (b)(1), and (d) to read as follows:
(a) * * * (ii) The Administrator will determine whether the records maintained by EPA indicate that the transferor possesses unexpended allowances sufficient to cover the transfer claim on the date the transfer claim is processed. The transfer claim is the quantity (in kilograms) to be transferred plus 0.1 percent of that quantity. The Administrator will take into account any previous transfers, any production, and allowable imports and exports of class II controlled substances reported by the transferor. Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the transferor and transferee as follows:
(A) The Administrator will issue a notice indicating that EPA does not object to the transfer if EPA's records show that the transferor has sufficient unexpended allowances to cover the transfer claim. In the case of transfers of production or consumption allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. In the case of transfers of export production or Article 5 allowances, EPA will reduce the transferor's balance of unexpended allowances, respectively, by the quantity to be transferred plus 0.1 percent of that quantity. The transferor and the transferee may proceed with the transfer when EPA issues a no objection notice. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee, where applicable, will be held liable for any knowing violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.
(b)
(d)
Forest Service, USDA.
Notice of call for nominations.
The Forest Resource Coordinating Committee (FRCC) is filling eight vacant positions. Candidates who wish to be considered for membership on the Forest Resource Coordinating Committee should submit an AD-755 application form, cover letter, and resume to the Secretary of Agriculture. The application form and additional information can be found at
Nomination applications are to be post marked by March 2, 2012
Nomination applications should be sent to Tom Vilsack, Secretary, Department of Agriculture (USDA), 1400 Independence Avenue SW., Washington, DC, 20250, Attn: Forest Resource Coordinating Committee.
Maya Solomon, FRCC Coordinator, by phone at (202) 205-1376 or by email at
Individuals who use telecommunications devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1 (800) 877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
Positions are to be filled for:
• Two State foresters or equivalent State officials from geographically diverse regions of the United States.
• A representative of a State fish and wildlife agency.
• An owner of nonindustrial private forest land.
• Two conservation organization representatives.
• A representative from an Indian Tribe.
• A representative from a State Technical Committee established under section 1261 of the Food Security Act of 1985.
The 20-member committee was established by the Food, Conservation, and Energy Act of 2008 to advise the Secretary of Agriculture on priorities and issues related to non-industrial private forest land. Members are charged with helping to clarify individual agency responsibilities; provide advice on the allocation of funds; and give direction and coordination of actions within USDA and the broader forestry sector, with specific focus on owners of non-industrial private forestland.
Members will serve staggered terms of up to three years. The committee meets at least once a year, travel expenses for non-federal members will be reimbursed. Individuals currently serving on other USDA advisory councils or commissions are ineligible to serve on this committee.
Individuals and organizations who wish to nominate experts for this or any other USDA advisory committee should submit a letter to the Secretary listing these individuals' names and business addresses, phone numbers, and email contact information. These individuals may be contacted now or in the future to determine their interest in serving as a committee member.
The Forest Service has special interest in assuring that women, minority groups, and persons with disabilities are adequately represented on these advisory committees. We encourage and welcome nominations for qualified female, minority, or persons with disabilities.
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's intention to request an extension for a currently approved information collection in support of the Feasibility Study program administered under the Rural Energy for America Program (REAP).
Comments on this notice must be received by March 5, 2012 to be assured of consideration.
Amy Cavanaugh, Management and Program Analyst, Rural Development, U.S. Department of Agriculture, STOP 3252, 1400 Independence Ave. SW., Washington, DC 20250-3201, Telephone (202) 260-1506.
This grant program, authorized under the 2008 Farm Bill, makes grants to eligible entities to conduct feasibility studies for renewable energy systems that are eligible for financial assistance under the REAP. Entities eligible to receive grants under this program are agricultural producers and rural small
Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0040.
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's intention to request an extension for a currently approved information collection in support of the Energy Audit and Renewable Energy Development Assistance (EA/REDA) program administered under the Rural Energy for America Program (REAP).
Comments on this notice must be received by March 5, 2012 to be assured of consideration.
Amy Cavanaugh, Management and Program Analyst, Rural Development, U.S. Department of Agriculture, STOP 3252, 1400 Independence Ave. SW., Washington, DC 20250-3201, Telephone (202) 260-1506.
This grant program, authorized under the 2008 Farm Bill, makes grants to eligible entities to provide energy audits and renewable energy development assistance to enable agricultural producers and rural small businesses to become more energy efficient and to use renewable energy technologies and resources. Entities eligible to receive grants under this program are State, tribal and local governments; land-grant colleges and universities or other institutions of higher learning; rural electric cooperatives; public power entities and instrumentalities of a State, tribal, or local government. Grant funds under this program may be used to conduct and promote energy audits; provide recommendations and information on how to improve the energy efficiency of the operations of the agricultural producers and rural small businesses; and provide recommendations and information on how to use renewable energy technologies and resources in the operations. No more than five percent of the grant can be used for administrative purposes. Agricultural producers and rural small businesses for which a grantee is conducting an energy audit must pay at least 25 percent of the cost of the energy audit.
Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0040.
U.S. Census Bureau.
Notice.
The Department of Commerce, 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)).
To ensure consideration, written comments must be submitted on or before March 5, 2012.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Gregory Hanks, U.S. Census Bureau, Washington, DC 20233-7400, (301) 763-3093 (or via email at
The mission of the Geography Division within the Census Bureau is to plan, coordinate, and administer all geographic and cartographic activities needed to facilitate Census Bureau statistical programs throughout the United States and its territories. The Geography Division manages programs to continuously update features, boundaries, addresses, and geographic entities in the Master Address File/Topologically Integrated Geographic Encoding and Referencing System (MAF/TIGER) database (MTDB). The Geography Division also conducts research into geographic concepts, methods, and standards needed to facilitate Census Bureau data collection and dissemination programs.
Geographic Partnership Programs (GPPs) allow designated participants, following Census Bureau guidelines, to review, update, and suggest modifications to addresses, features, boundaries, and geographic entities to maintain the Census Bureau MTDB and to ensure the accurate reporting of data from censuses and surveys. Because tribal, state, and local governments have address data, spatial data, and current knowledge about where growth and change are occurring in their jurisdictions, their input into the overall development of a continually maintained address list for censuses and surveys makes a vital contribution. Similarly, the Census Bureau recognizes that tribal, state, and local governments usually have the most authoritative data for addresses, features, and geographic boundaries in their jurisdictions. The benefits to local jurisdictions in sharing that information as part of the Census Bureau's geographic programs are realized in more accurate results of censuses and surveys.
This pre-submission notice is for a generic clearance that will cover a number of activities required for updating the MTDB with participant-provided address and other geographic information, or obtaining address and spatial data for research and evaluation purposes. The information collected in these programs in cooperation with tribal, state, and local governments and other partners is essential to the mission of the Census Bureau and directly contributes to the successful outcome of censuses and surveys conducted by the Census Bureau. The generic clearance allows the Census Bureau to focus its limited resources on actual operational planning, development of procedures, and implementation of programs to update and improve the geographic information maintained in the MTDB.
The Census Bureau will develop guidelines and procedures for tribal, state, and local government submissions of address data and geographic boundaries, and will outline the mutual roles and responsibilities of each party within each Geographic Partnership Program. The list below includes typical geographic partnership programs, but is not exhaustive of all activities that may be performed under this generic clearance. The Census Bureau will follow the approved procedure when submitting any additional activities not specifically listed here.
The GSS-I is an integrated program designed to improve address coverage, obtain continual spatial feature updates, and enhance the quality assessment and measurement for the MTDB. The GSS-I builds on the accomplishments of the last decade's MAF/TIGER Enhancement Program (the MTEP) which redesigned the MTDB, improved the positional accuracy of TIGER spatial features, and emphasized quality measurement. The Census Bureau plans on a continual update process for the MAF/TIGER throughout the decade to support current surveys, including the American Community Survey. Major participants are the U.S. Census Bureau with tribal, state, and local governments. The Census Bureau will contact tribal, state, and local governments to obtain files containing their address and spatial data, to explore data exchange opportunities, and share best practices.
The 2010 Census Redistricting Data Program is established in accordance with the provisions of Title 13 U.S.C. 141(C) and provides the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico the opportunity to specify the small geographic areas for which they wish to receive decennial census population totals for the purpose of reapportionment and redistricting. The law requires that the Census Bureau allow those having responsibility for apportionment or districting of each State be given the opportunity to specify geographic areas for which they wish to receive decennial census population counts. The law also requires that by April 1 of the year following the decennial census the Secretary of Commerce will furnish State officials or their designee(s) with population counts for standard census tabulation areas (e.g., counties, cities, census blocks, and Congressional districts) and if provided by the states, legislative districts and voting districts.
The States had the opportunity to verify the inclusion of their voting districts and suggested tabulation block boundary features during 2009 and early 2010, to ensure the voting district boundaries that were used by the Census Bureau are consistent with their submissions. In Phase 4 of the 2010 Redistricting Data Program, scheduled
The Census Bureau conducts the SDRP every two years under contract from the National Center for Education Statistics (NCES) of the U.S. Department of Education. The Census Bureau invites state education officials to participate in the review and update of its national inventory of school district boundaries and district information. State education officials collaborate with local superintendents on their responses. The participants review and provide updates and corrections to the elementary, secondary, and unified school district names and Federal Local Education Agency (LEA) identification numbers, school district boundaries, and the grade ranges for which a school district is financially responsible. The participants submit updated digital spatial files back to the Census Bureau.
The Census Bureau uses the updated school district information along with the most current Census population and income data, current population estimates, and tabulations of administrative records data, to form the Census Bureau's estimates of the number of children aged 5 through 17 in low-income families for each school district. These estimates of the number of children in low-income families residing within each school district are the basis of the funding allocation for each school district under Title I of the Elementary and Secondary Education Act as amended by the No Child Left Behind Act of 2001, Public Law (Pub. L.) 107-110.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the International Trade Commission (the “ITC”) that revocation of the antidumping duty (“AD”) orders on certain cut-to-length carbon-quality steel plate (“CTL Plate”) from Italy and Japan and of the countervailing duty (“CVD”) order on CTL Plate from Italy would not be likely to lead to the continuation or recurrence of material injury to an industry in the United States, the Department is publishing this notice of revocation of these AD and CVD orders.
Irene Darzenta Tzafolias (AD orders) or Eric Greynolds (CVD order), AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0922 and (202) 482-6071, respectively.
On November 1, 2010, the Department of Commerce (the “Department”) initiated and the ITC instituted sunset reviews of the AD and CVD orders on CTL Plate from India, Indonesia, Italy, Japan, and the Republic of Korea, pursuant to sections 751(c) and 752 of the Tariff Act of 1930, as amended (the “Act”), respectively.
On December 27, 2011, the ITC determined that revocation of the AD and CVD orders on CTL Plate from Italy and Japan would not be likely to lead to the continuation or recurrence of material injury within a reasonably foreseeable time.
The merchandise subject to the AD and CVD orders is certain hot-rolled carbon-quality steel: (1) Universal mill plates (
Steel products to be included in the scope are of rectangular, square, circular or other shape and of rectangular or non-rectangular cross-section where such non-rectangular cross-section is achieved subsequent to the rolling process (
Steel products to be included in the scope, regardless of Harmonized Tariff Schedule of the United States (“HTSUS”) definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements, (2) the carbon content is two percent or less, by weight, and (3) none of the elements listed below is equal to or exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent zirconium. All products that meet the written physical description, and in which the chemistry quantities do not equal or exceed any one of the levels listed above, are within the scope unless otherwise specifically excluded. The following products are specifically excluded from the orders: (1) Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances; (2) SAE grades (formerly AISI grades) of series 2300 and above; (3) products made to ASTM A710 and A736 or their proprietary equivalents; (4) abrasion-resistant steels (
Regarding the scope of the order for Japan, the following additional exclusions apply with respect to abrasion-resistant steels: NK-EH-360 (NK Everhard 360) and NK-EH-500 (NK Everhard 500). NK-EH-360 has the following specifications: (a) Physical Properties: Thickness ranging from 6-50 mm, Brinell Hardness: 361 min.; (b) Heat Treatment: controlled heat treatment; and (c) Chemical Composition (percent weight): C: 0.20 max., Si: 0.55 max., Mn: 1.60 max., P: 0.030 max., S: 0.030 max., Cr: 0.40 max., Ti: 0.005-0.020, B: 0.004 max. NK-EH-500 has the following specifications: (a) Physical Properties: Thickness ranging from 6-50 mm, Brinell Hardness: 477 min.; (b) Heat Treatment: Controlled heat treatment; and (c) Chemical Composition (percent weight): C: 0.35 max., Si: 0.55 max., Mn: 1.60 max., P: 0.030 max., S: 0.030 max., Cr: 0.80 max., Ti: 0.005-0.020, B: 0.004 max.
The merchandise subject to the orders is currently classifiable in the HTSUS under subheadings: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7225.40.3050, 7225.40.7000, 7225.50.6000, 7225.99.0090, 7226.91.5000, 7226.91.7000, 7226.91.8000, 7226.99.0000.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the orders is dispositive.
As a result of the determinations by the ITC that revocation of these AD and CVD orders would not be likely to lead to continuation or recurrence of material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department is revoking the AD and CVD orders on CTL Plate from Italy and Japan. Pursuant to section 751(d)(2) of the Act and 19 CFR 351.222(i)(2)(i), the effective date of revocation is December 6, 2010 (
The Department will notify U.S. Customs and Border Protection, 15 days after publication of this notice, to terminate suspension of liquidation and collection of cash deposits on entries of the subject merchandise, entered or withdrawn from warehouse, on or after December 6, 2010. Entries of subject merchandise prior to the effective date of revocation will continue to be subject to suspension of liquidation and antidumping and/or countervailing duty deposit requirements. The Department will complete any pending administrative reviews of these orders.
This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
These five-year (sunset) reviews and notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (the “Department”) and the International Trade Commission (the “ITC”) that revocation of the antidumping duty (“AD”) orders on certain cut-to-length carbon-quality steel plate (“CTL Plate”) from India, Indonesia, and the Republic of Korea (“Korea”) would likely lead to continuation or recurrence of dumping, that revocation of the countervailing duty (“CVD”) orders on CTL Plate from India, Indonesia, and Korea would likely lead to the continuation or recurrence of a countervailable subsidy, and that revocation of these AD and CVD orders would likely lead to a continuation or recurrence of material
Irene Darzenta Tzafolias (AD orders) or Eric Greynolds (CVD orders), AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0922 and (202) 482-6071, respectively.
On November 1, 2010, the Department initiated and the ITC instituted sunset reviews of the AD and CVD orders on CTL Plate from India, Indonesia, Italy, Japan, and Korea, pursuant to sections 751(c) and 752 of the Tariff Act of 1930, as amended (the “Act”), respectively.
On December 27, 2011, the ITC determined that revocation of the AD and CVD orders on CTL Plate from India, Indonesia, and Korea would likely lead to the continuation or recurrence of material injury within a reasonably foreseeable time.
The merchandise subject to the AD and CVD orders is certain hot-rolled carbon-quality steel: (1) Universal mill plates (
Steel products to be included in the scope are of rectangular, square, circular or other shape and of rectangular or non-rectangular cross-section where such non-rectangular cross-section is achieved subsequent to the rolling process (
Steel products to be included in the scope, regardless of Harmonized Tariff Schedule of the United States (“HTSUS”) definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements, (2) the carbon content is two percent or less, by weight, and (3) none of the elements listed below is equal to or exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent zirconium. All products that meet the written physical description, and in which the chemistry quantities do not equal or exceed any one of the levels listed above, are within the scope unless otherwise specifically excluded. The following products are specifically excluded from the orders: (1) Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances; (2) SAE grades (formerly AISI grades) of series 2300 and above; (3) products made to ASTM A710 and A736 or their proprietary equivalents; (4) abrasion-resistant steels (
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the orders is dispositive.
As a result of the determinations by the Department and the ITC that revocation of these AD and CVD orders would likely lead to continuation or recurrence of dumping or a countervailable subsidy, and of material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the AD and CVD orders on CTL Plate from India, Indonesia, and Korea. U.S. Customs and Border Protection will continue to collect cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of these orders is the date of publication in the
Pursuant to sections 751(c)(2) and 751(c)(6) of the Act, the Department intends to initiate the next five-year review of these orders not later than 30 days prior to the fifth anniversary of the effective date of continuation.
These five-year (sunset) reviews and notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in February 2012 and will appear in that month's Notice of Initiation of Five-Year Sunset Reviews.
No Sunset Review of countervailing duty orders is scheduled for initiation in February 2012.
No Sunset Review of suspended investigations is scheduled for initiation in February 2012.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in the Department's Policy Bulletin 98.3—
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) has determined that two requests for a new shipper review (NSR) under the antidumping duty order on fresh garlic from the People's Republic of China (PRC), meet the statutory and regulatory requirements for initiation. The period of review (POR) is November 1, 2010, through October 31, 2011.
Lingjun Wang and Scott Lindsay, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2316 and (202) 482-0780.
The Department published the antidumping duty order on fresh garlic from the PRC in the
Pursuant to the requirements set forth in 19 CFR 351.214(b), Fuyi certified that it is the exporter and Jinxiang Shenglong Trade Co., Ltd. (Shenglong) certified that it is the producer of the fresh garlic exported by Fuyi; Maycarrier certified that it is the exporter and Yishui Hengshun Food Co., Ltd. (YHFC) certified that it is the producer of the fresh garlic exported by Maycarrier. Moreover, Fuyi, Shenglong, Maycarrier and YHFC each certified that: (1) They did not export fresh garlic for sale to the United States during the period of investigation (POI); (2) since the investigation was initiated, they have never been affiliated with any exporter or producer who exported the subject merchandise to the United States during the POI, including those not individually examined during the investigation; and (3) their export activities are not controlled by the
The Department queried the database of U.S. Customs and Border Protection (CBP) in an attempt to confirm that shipments reported by Fuyi and Maycarrier had entered the United States for consumption and that liquidation had been properly suspended for antidumping duties. The information which the Department examined was consistent with that provided by Fuyi and Maycarrier in their requests.
In accordance with 19 CFR 351.214(g)(1)(i)(A), the POR for an NSR initiated in the month immediately following the anniversary month will be the twelve-month period immediately preceding the anniversary month. Therefore, the POR for this NSR is November 1, 2010, through October 31, 2011. The sales and entries into the United States of subject merchandise exported by Fuyi and Maycarrier and produced by Shenglong and YHFC, respectively, occurred during this twelve-month POR.
Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b), and the information on the record, the Department finds that the requests submitted by Fuyi and Maycarrier meet the threshold requirements for initiation of an NSR of their shipments of fresh garlic from the PRC. The Department intends to issue the preliminary results within 180 days after the date on which these reviews are initiated, and final results within 90 days after the date on which preliminary results are published, in accordance with section 751(a)(2)(B)(iv) of the Act.
It is the Department's usual practice, in cases involving non-market economies, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of
We will instruct CBP to allow, at the option of the importer, the posting, until the completion of the review, of a bond or security in lieu of a cash deposit for certain entries of the subject merchandise from Fuyi and Maycarrier in accordance with section 751(a)(2)(B)(iii) of the Act and 19 CFR 351.214(e). Specifically, the bonding privilege will only apply to entries of subject merchandise exported by Fuyi which have been produced by Shenglong, because it certified that the sale of subject merchandise documented in its NSR request was produced by Shenglong. Likewise, the bonding privilege will only apply to entries of subject merchandise exported by Maycarrier which have been produced by YHFC, because Maycarrier certified that the subject merchandise documented in its NSR request was produced by YHFC.
Interested parties requiring access to proprietary information in this NSR should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306.
This initiation and notice are in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Alejandro Acevedo-Gutiérrez, Ph.D., Biology Department, Western Washington University, Bellingham, WA has applied in due form for a permit to conduct research on harbor seals (
Written, telefaxed, or email comments must be received on or before February 3, 2012.
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
Northwest Region, NMFS, 7600 Sand Point Way NE., BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206) 526-6150; fax (206) 526-6426.
Written comments on this application should be submitted to the Chief, Permits and Conservation 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.
Tammy Adams 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 applicant requests a five-year permit to address the interactions between humans and harbor seals in the Salish Sea, USA. They propose to estimate harbor seal response to (1) different kayak speeds in four haul-out sites to recommend management policies and (2) calls from bald eagles at two haul-out sites with different levels of boat traffic to estimate the effect of human activity on the response of seals to natural predators. The applicant
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; receipt of application.
Notice is hereby given that Mr. Gregory Walker, University of Alaska Fairbanks, Fairbanks, AK has applied for a permit to conduct research on Steller sea lions (
Written, telefaxed, or email comments must be received on or before February 3, 2012.
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
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907) 586-7221; fax (907) 586-7249.
Written comments on this application should be submitted to the Chief, Permits and Conservation 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.
Tammy Adams or Laura Morse, (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 objective of the project is to demonstrate novel methods for imaging Steller sea lion terrestrial habitat in the Aleutian Islands with the accuracy and fidelity necessary for population surveys and at a cost low enough to allow frequent monitoring. Ship-based unmanned aircraft would be used for low-altitude (75 to 120 meters) aerial surveys of rookeries and haul outs between March and December 2012. A permit is requested for harassment of 13,000 Steller sea lions, 200 harbor seals (
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; issuance of permit.
Notice is hereby given that a permit has been issued to Mithriel MacKay, Texas A&M University at Galveston, Galveston, TX 75003 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:
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.
Kristy Beard or Joselyd Garcia-Reyes, (301) 427-8401.
On April 4, 2011, notice was published in the
The permit authorizes up to 700 humpback whales to be harassed each year during vessel-based photo-identification, behavioral observation, and passive acoustic recording. The applicant requested that we remove the original request for divers to conduct underwater photography from the application. Whales will be harassed year-round, with efforts focused from October through July. The permit is valid for five years from the date of issuance.
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.
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), 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 this new information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 5, 2012.
You may submit comments by any of the following methods:
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•
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Requests for additional information should be directed to Raul Tamayo, Legal Advisor, Office of Patent Legal Administration, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at (571) 272-7728; or by email to
Additional information about this collection is also available at
During its examination of an application for patent or for reissue of a patent, or during its reexamination of a patent, the United States Patent and Trademark Office (USPTO) makes many decisions of a substantive nature which the applicant or patent owner may feel deny him or her the patent protection to which he or she is entitled. Where the differences of opinion on such matters concern the denial of patent claims because of prior art or other patentability issues, the questions thereby raised are said to relate to the merits, and a procedure for appealing to the Board of Patent Appeals and Interferences has long been provided by statute (35 U.S.C. 134).
Applicants and patent owners initiate the appeal procedure by filing a Notice of Appeal. At the time of filing a Notice of Appeal, applicants and patent owners may request that a panel of examiners formally review the legal and factual basis of the rejections in their application prior to the filing of an Appeal Brief, by filing a Pre-Appeal Brief Request for Review. In addition, applicants and patent owners who desire an oral hearing before the Board may request the hearing by filing a Request for Oral Hearing Before the Board of Patent Appeals and Interferences.
Currently, Notices of Appeal, Requests for Oral Hearing, and Pre-appeal Brief Requests for Review are covered under 0651-0031 Patent Processing (Updating). The USPTO has determined that it would be beneficial to transfer these items out of 0651-0031 and into their own collection. Therefore, the USPTO is requesting the creation of a new collection which will transfer the three existing notices and requests out of the 0651-0031 inventory into a new collection of information titled “Matters Related to Patent Appeals.” For a complete listing of the items covered by this collection, please see the table in Section III of this notice.
The information in this collection can be submitted electronically through EFS-Web, the USPTO's Web-based electronic filing system, as well as on paper. The USPTO is taking this opportunity to account for the electronic submissions in this collection.
There are forms associated with the Notices of Appeal (PTO/SB/31), the Requests for Oral Hearing Before the Board of Patent Appeals and Interferences (PTO/SB/32), and the Pre-appeal Brief Requests for Review (PTO/SB/33). Therefore, after approval, this collection will have three forms.
By mail, facsimile, or hand delivery to the USPTO when an applicant files the various notices or requests. The remaining papers can also be filed as attachments through EFS-Web.
The USPTO estimates that this collection will have a total annual cost of $22,264,200 in filing fees.
The public may submit the notices and requests in this collection to the USPTO by mail through the United States Postal Service. All correspondence may include a certificate of mailing for each piece of correspondence enclosed, stating the date of deposit or transmission to the USPTO in order to receive credit for timely filing. The USPTO has estimated that the vast majority of these submissions will weigh no more than two ounces. Therefore, the USPTO is conservatively estimating that these submissions will be mailed by first-class postage at 65 cents. Postage for the certificates of mailing themselves are not calculated into this estimate as they are included with the individual pieces of correspondence that are being deposited with the United States Postal Service.
The USPTO estimates that 3,800 responses will be mailed by first-class postage, for a total annual cost of $2,470 in postage costs.
The total annual (non-hour) respondent cost burden for this collection in the form of filing fees and postage costs is estimated to be $22,266,670 per year.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Defense Threat Reduction Agency, DoD.
Notice to Alter a System of Records.
The Defense Threat Reduction Agency 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 February 3, 2012 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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*
Ms. Juanita Gaines, Freedom of Information and Privacy Office, Defense Threat Reduction Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060-6201, or by phone at (703) 767-1771.
The Defense Threat Reduction Agency 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 December 21, 2011, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Security Services (December 4, 2009, 74 FR 63734).
Delete entry and replace with “Primary location: Security and Counterintelligence Office, Defense Threat Reduction Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060-6201.
Security and Counterintelligence Office Albuquerque, Defense Threat Reduction Agency, 1680 Texas Street SE., Kirtland Air Force Base, Albuquerque, NM 87117-5669.
Security and Counterintelligence Field Office Travis, Defense Threat Reduction Agency, 510 Hickman Avenue, Travis Air Force Base, CA 94535-1801.
Security and Counterintelligence European Operations Division, Defense Threat Reduction Agency, Kleber Kaserne, Mannheimer Strasse, Building 3211, Room 104, Kaiserslautern, Germany.
Security and Counterintelligence Field Office Eglin, Defense Threat Reduction Agency, Eglin Air Force Base, 101 West Eglin Blvd., Building 13A, Suite 39, Eglin AFB, FL 32542-5650.”
Delete entry and replace with “Name; Social Security Number (SSN); home address, date and place of birth; height; weight; hair and eye color; citizenship; grade/rank; services; organization; security clearance; date of clearance; date of investigation; type of investigation; agency that conducted investigation; basis special accesses; courier authorization; continuous access roster expiration date; badge number; vehicle ID and decal number; special intelligence access; expiration date, agency, billet number; list of badges/passes issued; safes and open storage locations/custodians; conference title/duties/location; special access/briefings; visit requests; conference rosters; clearance and special access rosters; picture identification; correspondence concerning adjudication/passing of clearances/accesses; information from DD 254 (contract security classification specification form) which identifies the type or level of classified material the specific contractor has access to; and security inquiries and insider threats.”
Delete entry and replace with “5 U.S.C. 301, Departmental Regulations; E.O. 10450, Security Requirements for Government Employment; E.O. 12065, National Security Information; The Atomic Energy Act of 1954, Section 145; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “For use by officials and employees of the Defense Threat Reduction Agency in the performance of their official duties related to continuous review, insider threat and determining the eligibility of individuals for access to classified information and occupancy of a sensitive position, access to buildings and facilities, or to conferences over which DTRA has security responsibility.”
Delete entry and replace with “By individual's last name and SSN.”
Delete entry and replace with “Computer records on individuals are
Delete entry and replace with “Chief, Security and Counterintelligence Office, Defense Threat Reduction Agency, 8725 John J. Kingman Drive, Ft. Belvoir, VA 22060-6201.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Defense Threat Reduction Agency, Freedom of Information/Privacy Act Office, 8725 John J. Kingman Drive, Ft. Belvoir, VA 22060-6201.
Written requests for information should contain the full name, home address, SSN, date and place of birth.
For personal visits, the individual must be able to provide identification showing full name, date and place of birth, and their SSN.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Defense Threat Reduction Agency, Freedom of Information/Privacy Act Office, 8725 John J. Kingman Drive, Ft. Belvoir, VA 22060-6201.
Written requests for information should contain the full name, home address, SSN, date and place of birth.
For personal visits, the individual must be able to provide identification showing full name, date and place of birth, and their SSN.”
Delete entry and replace with “The DTRA rules for accessing records and for contesting contents and appealing initial agency determinations are published in DTRA Instruction 5400.11; 32 CFR part 318; or may be obtained from the system manager.”
Security Services.
Primary location: Security and Counterintelligence Office, Defense Threat Reduction Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060-6201.
Security and Counterintelligence Office Albuquerque, Defense Threat Reduction Agency, 1680 Texas Street SE., Kirtland Air Force Base, Albuquerque, NM 87117-5669.
Security and Counterintelligence Field Office Travis, Defense Threat Reduction Agency, 510 Hickman Avenue, Travis Air Force Base, CA 94535-1801.
Security and Counterintelligence European Operations Division, Defense Threat Reduction Agency, Kleber Kaserne, Mannheimer Strasse, Building 3211, Room 104, Kaiserslautern, Germany.
Security and Counterintelligence Field Office Eglin, Defense Threat Reduction Agency, Eglin Air Force Base, 101 West Eglin Blvd., Building 13A, Suite 39, Eglin AFB, FL 32542-5650.
All military and civilian personnel assigned to, or employed by Defense Threat Reduction Agency (DTRA).
Name; Social Security Number (SSN); home address, date and place of birth; height; weight; hair and eye color; citizenship; grade/rank; services; organization; security clearance; date of clearance; date of investigation; type of investigation; agency that conducted investigation; basis special accesses; courier authorization; continuous access roster expiration date; badge number; vehicle ID and decal number; special intelligence access; expiration date, agency, billet number; list of badges/passes issued; safes and open storage locations/custodians; conference title/duties/location; special access/briefings; visit requests; conference rosters; clearance and special access rosters; picture identification; correspondence concerning adjudication/passing of clearances/accesses; information from DD 254 (contract security classification specification form) which identifies the type or level of classified material the specific contractor has access to; and security inquiries and insider threats.”
5 U.S.C. 301, Departmental Regulations; E.O. 10450, Security Requirements for Government Employment; E.O. 12065, National Security Information; The Atomic Energy Act of 1954, Section 145; and E.O. 9397 (SSN), as amended.”
For use by officials and employees of the Defense Threat Reduction Agency in the performance of their official duties related to continuous review, insider threat and determining the eligibility of individuals for access to classified information and occupancy of a sensitive position, access to buildings and facilities, or to conferences over which DTRA has security responsibility.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To officials and employees of Government contractors and other Government agencies in the performance of their official duties related to the screening and selection of individuals for security clearances and/or special authorizations, access to facilities or attendance at conferences.
The DoD “Blanket Routine Uses” published at the beginning of DTRA's compilation of systems of records notices apply to this system.
Electronic storage media and paper records.
By individual's last name and SSN.
The computer facility and terminals are located in restricted areas accessible only to authorized personnel. Manual records and computer printouts are available only to authorized persons with an official need to know. Buildings are protected by security forces and an electronic security system.
Computer records on individuals are moved to historical area of database files upon termination of an individual's affiliation with DTRA; personnel security files are retained for two years at which point the Classified Information Non-disclosure Agreement forms (SF 312) for civilians are mailed to the Defense Logistics Agency Human Resources and all others are destroyed. Manual records or conference attendees, visitors, and visit certifications to other agencies are maintained for two years and destroyed. All computer records are deleted with a separation date greater than 2 years except for those that have the following criteria: (a) Eligibilities of denied, revoked or pending reply to statement of reasons; (b) eligibilities of loss of jurisdiction, action pending, interim declination; and (c) suspend accesses that have not been debriefed. All records with a death date greater than a year are deleted. The following records are retained until there is clear guidance on record retention: (a) Eligibilities of denied, revoked or pending reply to statement of reasons; (b) eligibilities of loss of jurisdiction, action pending, interim declination; and (c) suspend accesses that have not been debriefed. Computer records are deleted and paper records are shredded.
Chief, Security and Counterintelligence Office, Defense Threat Reduction Agency, 8725 John J. Kingman Drive, Ft. Belvoir, VA 22060-6201.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Defense Threat Reduction Agency, Freedom of Information/Privacy Act Office, 8725 John J. Kingman Drive, Ft. Belvoir, VA 22060-6201.
Written requests for information should contain the full name, home address, SSN, date and place of birth.
For personal visits, the individual must be able to provide identification showing full name, date and place of birth, and their SSN.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Defense Threat Reduction Agency, Freedom of Information/Privacy Act Office, 8725 John J. Kingman Drive, Ft. Belvoir, VA 22060-6201.
Written requests for information should contain the full name, home address, SSN, date and place of birth.
For personal visits, the individual must be able to provide identification showing full name, date and place of birth, and their SSN.
The DTRA rules for accessing records and for contesting contents and appealing initial agency determinations are published in DTRA Instruction 5400.11; 32 CFR part 318; or may be obtained from the system manager.
Information is extracted from military and civilian personnel records, investigative files, and voluntarily submitted by the individual. Other Government agencies, law enforcement officials and contractors may provide the same data.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this system has been promulgated in accordance with the requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 318.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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:
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 exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 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:
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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the Sabine Pass Liquefaction Project (Project), proposed by Sabine Pass Liquefaction, LLC and Sabine Pass LNG, L.P. (collectively referred to as Sabine Pass) in the above-referenced docket. Sabine Pass requests authorization to construct and operate facilities to be used for the liquefaction and exportation of natural gas at the existing Sabine Pass LNG Import Terminal in Cameron Parish, Louisiana. The Project would be capable of processing an average of approximately 2.6 billion cubic feet per day of pipeline quality natural gas from the Creole Trail Pipeline, which interconnects with the SPLNG Terminal. Sabine Pass would liquefy the natural gas, store the liquefied natural gas (LNG), and export approximately 16 million metric tons per annum of LNG via LNG carriers.
The EA assesses the potential environmental effects of the construction and operation of the Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The Department of Energy, U.S. Army Corps of Engineers, and U.S. Department of Transportation participated as cooperating agencies in the preparation of the EA. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis.
The proposed Project includes the following facilities:
• Four LNG liquefaction trains (each train contains gas treatment facilities, six gas turbine-driven refrigerant compressors, waste heat recovery systems, induced draft air coolers, fire and gas detection and safety systems, control systems, and associated infrastructure);
• Additional power generation (including up to two gas turbine-driven generators, transformers, and other electrical accessories to supplement existing onsite power generation);
• Other infrastructure and modifications (including storage tanks for propane and ethylene refrigerants and the amine make up, replacement of in-tank LNG pumps and piping modifications to increase flow capacity and facilitate loading of LNG carriers, impoundments for the liquefaction trains, flares, recycle boil-off gas compressors, potable water, service water, and demineralized water systems); and
• New and remodeled buildings.
The FERC staff mailed copies of the EA to federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American tribes; potentially affected landowners and other interested individuals and groups; newspapers and libraries in the project area; and parties to this proceeding. In addition, the EA is available for public viewing on the FERC's Web site (
Any person wishing to comment on the EA may do so. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are properly recorded and considered prior to a Commission decision on the proposal, it is important that the FERC receives your comments in Washington, DC on or before January 27, 2011.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP11-72-000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
On December 13, 2011, Southcross Mississippi Pipeline, L.P. (Southcross) filed a request to extend the date for filing its next rate case pursuant to sections 284.224 and 284.123 (2011) of the Commission's regulations.
Upon consideration, notice is hereby given that an extension of time for Southcross to file its section 284.123 rate petition is granted to and including February 1, 2014.
On December 13, 2011, Southcross CCNG Transmission Ltd. (Southcross CCNG) filed a request to extend the date for filing its next rate case pursuant to sections 284.224 and 284.123 (2011) of the Commission's regulations.
Upon consideration, notice is hereby given that an extension of time for Southcross CCNG to file its section 284.123 rate petition is granted to and including April 20, 2015.
This is a supplemental notice in the above-referenced proceeding of Brea Power II LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the Applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Rhode Island LFG Genco LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Brea Generation LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Erie Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Perrin Ranch Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Rhode Island Engine Genco LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the Applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 17, 2012.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, and protests, is 30 days from the issuance date of this notice. All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the project numbers (P-2090-008) on any comments, motions, or recommendations filed.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Environmental Protection Agency (EPA).
Supplemental Notice of Proposed Consent Decree; Request for Public Comment.
On December 2, 2011, EPA provided notice in accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), 42 U.S.C. 7413(g), of a proposed consent decree to address a lawsuit filed by National Parks Conservation Association, Montana Environmental Information Center, Grand Canyon Trust, San Juan Citizens Alliance, Our Children's Earth Foundation, Plains Justice, Powder River Basin Resource Council, Sierra Club, and Environmental Defense Fund (collectively “Plaintiffs”) in the United States District Court for the District of Columbia:
Written comments on the proposed consent decree as it affects Arizona, Michigan, and New Mexico must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2011-0929, online at
Lea Anderson, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-5571; fax number (202) 564-5603; email address:
Under section 110(c) of the CAA, EPA has a mandatory duty to promulgate a federal implementation plan (“FIP”) within two years of a finding that a state has failed to make a required state implementation plan (“SIP”) submittal. EPA is not required to promulgate a FIP, however, if the state submits the required SIP and EPA approves the plan within the two years of EPA's finding. On January 15, 2009, EPA found that 37 states, the District of Columbia, and the U.S. Virgin Islands had failed to submit CAA SIPs for improving visibility in mandatory Federal Class I areas.
The proposed consent decree would resolve a deadline suit filed by Plaintiffs for EPA to take action on a number of regional haze SIPs. The proposed consent decree would address,
For a period of thirty (30) days following the date of publication of this supplemental notice, the Agency will accept written comments relating to the provisions in the proposed consent decree addressing Arizona, Michigan, and New Mexico from persons who were not named as parties or intervenors to the litigation in question. Other written comments on the proposed consent decree must be received by January 3, 2012. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to this consent decree should be withdrawn, the terms of the proposed consent decree will be affirmed.
Additional information about commenting on the proposed consent decree can be found in the notice published on December 2, 2011.
Environmental Protection Agency (EPA).
Notice of Proposed Settlement Agreement; Request for Public Comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement to address lawsuits filed by EnerNOC, Inc., EnergyConnect, Inc., CPower, Inc., and Innoventive Power, LLC (“Petitioners”) in the United States Court of Appeals for the District of Columbia Circuit:
Written comments on the proposed settlement agreement must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2011-1030, online at
Michael Horowitz, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202)
This proposed settlement agreement would potentially resolve a petition for judicial review filed by Petitioners for review of two rulemakings revising the National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines (the RICE NESHAP), 75 FR 9648 (March 3, 2010) and 75 FR 51570 (August 20, 2010). The RICE NESHAP allows emergency engines to operate for 15 hours annually as part of a demand response program if the regional transmission organization or equivalent balancing authority and transmission operator has determined that there are emergency conditions that would lead to a potential electrical blackout, such as unusually low frequency, equipment overload, capacity or energy deficiency, or unacceptable voltage level. RICE would not meet the definition of emergency engine if they operated more than fifteen hours in such circumstances.
Petitioners filed petitions for review and reconsideration indicating that 15 hours is insufficient to ensure that emergency engines can be relied upon for dispatch under emergency demand response programs. The petition for reconsideration provided significant evidence that the NESHAP should be revised to allow owners and operator of emergency engines to operate for 60 hours per year or the minimum hours required by Independent System Operator tariff, whichever is less, as part of an emergency demand response program.
Under the terms of the proposed settlement agreement, EPA states that it anticipates that, by April 20, 2012, the Agency will sign a notice of proposed rulemaking that includes a proposal to revise the RICE NESHAP and, for consistency, the ICE NSPS to allow owners and operators of emergency stationary internal combustion engines to operate emergency stationary internal combustion engines in emergency conditions, as defined in those regulations, as part of an emergency demand response program for 60 hours per year or the minimum hours required by Independent System Operator tariff, whichever is less. The notice of proposed rulemaking may also allow for more hours of operation. In addition, under the terms of the proposed settlement agreement, by December 14, 2012, the Administrator of EPA will sign a final action on this proposal, which may include signature of a final rule by the Administrator. Under the proposed settlement agreement, if EPA fails to sign the proposal by April 20, 2012, or to take final action on the proposal by December 14, 2012, Petitioners may move the Court to lift the order staying proceedings and establish a briefing schedule. Petitioners shall have no further remedy under the agreement.
Under the proposed settlement agreement, if the relevant provisions of the final rule are in substantial conformance with the revisions in the proposed agreement, then Petitioners agree to dismiss the petition for review.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed settlement agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines, based on any comment submitted, that consent to this settlement agreement should be withdrawn, the terms of the agreement will be affirmed.
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2011-1030) contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Export-Import Bank of the U.S.
Submission for OMB review and comments request.
The Export-Import Bank of the United States (Ex-Im Bank), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
This form will enable Ex-Im Bank to identify the specific details of the proposed co-financing transaction between a U.S. exporter, Ex-Im Bank, and a foreign export credit agency; the information collected includes vital facts such as the amount of U.S.-made content in the export, the amount of financing requested from Ex-Im Bank, and the proposed financing amount from the foreign export credit agency. These details are necessary for approving this unique transaction structure and coordinating our support with that of the foreign export credit agency to ultimately complete the transaction and support U.S. exports—and U.S. jobs.
Comments should be received on or before February 3, 2012 to be assured of consideration.
Comments may be submitted electronically on
Export-Import Bank of the U.S.
Submission for OMB Review and Comments Request.
The Export-Import Bank of the United States (Ex-Im Bank), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
The collection will provide information needed to determine compliance and creditworthiness for transaction requests submitted to Ex-Im Bank under its insurance, guarantee, and direct loan programs. Information presented in this form will be considered in the overall evaluation of the transaction, including Export-Import Bank's determination of the appropriate term for the transaction.
Comments should be received on or before to be assured of consideration.
Comments may be submitted electronically on
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal
A. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 27, 2012.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 18, 2012.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 18, 2012.
A. Federal Reserve Bank of St. Louis (Glenda Wilson, Community Affairs Officer), P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
Office of the Secretary, HHS.
Final notice.
This final notice announces the initial core set of health care quality measures for Medicaid-eligible adults, as required by section 2701 of the Affordable Care Act, for voluntary use by State programs administered under title XIX of the Social Security Act, health insurance issuers and managed care entities that enter into contracts with Medicaid, and providers of items and services under these programs.
Karen Llanos, Centers for Medicare & Medicaid Services, (410) 786-9071.
Section 2701 of the Patient Protection and Affordable Care Act (Affordable Care Act) (Pub. L. 111-148) added new section 1139B to the Social Security Act (the Act). Section 1139B(a) of the Act directs the Secretary of Health and Human Services (HHS) to identify and publish for public comment a recommended initial core set of health care quality measures for Medicaid-eligible adults, and section 1139B(b)(1) of the Act requires that an initial core set be published by January 1, 2012. Additionally, the statute requires the initial core set recommendation to consist of existing adult health care quality measures in use under public and privately sponsored health care coverage arrangements or that are part of reporting systems that measure both the presence and duration of health insurance coverage over time and that may be applicable to Medicaid-eligible adults.
Section 1139B of the Act also requires the Secretary to complete the following actions:
• Establish a Medicaid Quality Measurement Program to fund development, testing, and validation of emerging and innovative evidence-based measures.
• Develop a standardized reporting format for the core set of adult quality measures and procedures to encourage voluntary reporting by the States.
• Annually publish recommended changes to the initial core set that shall reflect the results of the testing, validation, and consensus process for the development of adult health quality measures.
• Include in the report to Congress mandated under section 1139A(a)(6) of the Act on the quality of health care of children in Medicaid and the Children's Health Insurance Program (CHIP) similar information for adult health quality with respect to measures established under section 1139B of the Act. This report must be published every 3 years thereafter in accordance with the statute.
• Collect, analyze, and make publicly available the information reported by the States as required in section 1139B(d)(1) of the Act.
Identification of the initial core set of measures for Medicaid-eligible adults is an important first step in an overall strategy to encourage and enhance quality improvement. States that chose to collect the initial core set will be better positioned to measure their performance and develop action plans to achieve the three part aims of better care, healthier people, and affordable care as identified in HHS' National Strategy for Quality Improvement in Health Care. Additional information about the National Quality Strategy can be found at:
The initial core set of quality measures for voluntary annual reporting by States has been determined based on recommendations from the Agency for Healthcare Research and Quality's Subcommittee to the National Advisory Council for Healthcare Research and Quality, as well as public comments, before being finalized by the Secretary. These core set measures will support HHS and its State partners in developing a quality-driven, evidence-based, national system for measuring the quality of health care provided to Medicaid-eligible adults.
Over the next year, CMS will phase in components of the Medicaid Adult Quality Measures Program that will help to further identify measurement gap areas and begin testing the collection of some of the initial core measures. The Medicaid Adult Quality Measures Program will focus on developing and refining measures, where needed, so that future updates to the initial core set can meet a wider range of States' health care quality measurement needs. By September 2012, CMS will release technical specifications as a resource for States that seek to voluntarily collect and report the initial core set of health care quality measures for Medicaid-eligible adults. Additionally, as required in statute, by January 1, 2013, CMS will issue guidance for submitting the initial core set to CMS in a standardized format. Lastly, much like activities conducted under section 1139A of the Act for the initial core child health care quality measures, the Secretary will launch a Technical Assistance and Analytic Support Program to help States collect, report, and use the voluntary core set of adult measures.
The Affordable Care Act requires the development of a core set of health quality measures for adults eligible for benefits under Medicaid. The statute parallels the requirement under section 1139A of the Act to identify and publish a recommended initial core set of quality measures for children in Medicaid and the CHIP. HHS used a similar process to identify the initial set of health care quality measures for Medicaid-eligible adults.
The Centers for Medicare & Medicaid Services (CMS) partnered with the Agency for Healthcare Research and Quality (AHRQ) to collaborate on the identification of the initial core set of health care quality measures for adults. Working through its National Advisory Council for Healthcare Research and Quality, which provides advice and recommendations to the Director of AHRQ and to the Secretary of HHS on priorities for a national health services research agenda, AHRQ created a Subcommittee in the fall of 2010 to evaluate candidate measures for the initial core set. The Subcommittee consisted of State Medicaid representatives, health care quality experts, and representatives of health professional organizations and associations, and was charged with considering the health care quality needs of adults (ages 18 and older) enrolled in Medicaid in its
The measures were posted for public comment through a
To be responsive to the public comments, the Subcommittee sought to identify measures that ensured comprehensive representation of variables affecting Medicaid-eligible adults while considering ways to decrease the number of measures in the set. AHRQ and CMS identified five criteria against which to evaluate the proposed core measures: importance; scientific evidence supporting the measure; scientific soundness of the measure; current use in and alignment with existing Federal programs; and feasibility for State reporting (a background report detailing the selection criteria and Subcommittee process can be found at:
As in the initial meeting, the Subcommittee broke into workgroups focusing on four dimensions of health care related to adults in Medicaid: Adult Health, Maternal/Reproductive Health, Complex Health Care Needs, and Mental Health and Substance Use. Workgroups were assigned two sets of measures that related to their specific areas: originally recommended measures and measures proposed in public comment. To assess how each measure fared against the five criteria, the Subcommittee reviewed background information (including numerator, denominator, exclusions, prevalence, clinical guidelines, past performance rates, etc.) on each measure from the measure owners, developers, or stewards.
The workgroup prioritized 10 of the original measures to be included in the final set, dropping five measures that were duplicative of other measures. The workgroup brought forward one measure that was suggested in public comment,
After evaluating the measures against the criteria, the Maternal/Reproductive Health workgroup recommended keeping each of the five measures originally posed for the core set, noting that these measures addressed areas of high importance to women and reproductive health, were feasible to report and aligned well with current programs (including the initial core set of children's health care quality measures
The Complex Health Care Needs workgroup recommended nine of the 18 measures originally posed for inclusion in the draft core set. Although the topic areas represented in the measures suggested through public comment were important to Medicaid, many of the measures scored low on multiple criteria (for example, scientific soundness and feasibility for State reporting) and thus were deemed not ready for wide-scale implementation. Further, although several of the proposed measures assessed the very important topic of care coordination for patients who are hospitalized or transferred across multiple facilities, the workgroup noted that many of these measures were challenged by complex requirements for data collection and excluded target populations (for example, dually eligible beneficiaries and individuals with long-term care services and supports needs). Many of the measures, for example, required medical record review across time or at more than one site (for example,
After discussing how well the 13 measures originally proposed fared against the selection criteria, the Mental Health and Substance Use workgroup recommended nine measures for inclusion in the draft core set and decided against bringing forward any of the additional measures suggested in public comment. In general, the workgroup prioritized measures that were broadly applicable to the Medicaid population or to primary care settings. For example, the workgroup included measures that assessed conditions that may be prevalent in a low-income population, including depression, schizophrenia, and substance use, in
A total of 35 measures received a majority vote from the full Subcommittee. The measures voted upon by the Subcommittee included recommendations from each workgroup that were based on the original 51 measures as well as new measures identified through public comment that were brought forth by each workgroup. The Adult Health work group recommended eleven measures for inclusion in the initial core set. The Maternal/Reproductive Health work group recommended six measures. The Complex Health Care Needs work group recommended nine measures and the Mental Health and Substance Use recommended nine measures.
The Subcommittee discussed how these measures represented conditions and populations relevant to Medicaid, and examined each measure's data source and use in existing programs. In the final round of voting, 24
In response to the publication of the December 30, 2010 notice with comment period, we received 100 timely public comments. The following are a summary of the public comments that we received related to that notice, and our responses to the comments:
• Measure description, numerator, denominator and exclusions.
• Data sources (for example, claims, medical records, electronic health records).
• Description of health importance, prevalence, financial importance and opportunity for improvement, including what is known about gaps in care and health care disparities.
• Brief description of the scientific literature, including what is known about effectiveness of the intervention being addressed, and what is known about management and follow-up.
• Published clinical guidelines relevant to the measure.
• Validity and reliability of results, including a description of the study sample and methods used.
• Performance rates (most recent and two years prior).
For additional information on consideration of the public comments and the finalization of the initial core set of health care quality measures for Medicaid-eligible adults, a background report can be found at:
This final notice announces the initial core set of health care quality measures for Medicaid-eligible adults for voluntary use by State Medicaid programs. As required in statute, by January 1, 2013, CMS will issue guidance for submitting the initial core set to CMS in a standardized format. States choosing to collect the initial core set of measures will use that reporting template to submit data to CMS. Voluntary reporting will not begin until December 2013.
The guidance, core measures, and template are subject to the Paperwork Reduction Act and will be submitted to the Office of Management and Budget (OMB) for their review and approval at a later time. No persons are required to respond to a collection of information (whether voluntary or mandatory) unless it displays a valid OMB control number issued by OMB.
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
Sections XIX and XXI of the Social Security Act (42 U.S.C. 13206 through 9a).
This table of the initial core set of health care quality measures for Medicaid-eligible adults includes National Quality Forum (NQF) identifying numbers for measures that have been endorsed, provides the measure stewards and indicates those measures which are used in various Federal and public sector programs including: Initial Core Set of Children's Health Care Quality Measures; the Medicare & Medicaid EHR Incentive Programs for eligible health care professionals and hospitals that adopt certified Electronic Health Record technology under the Final Rule published in the July 28, 2010
The meeting announced below concerns National HIV Behavioral Surveillance For Young Men Who Have Sex With Men, Funding Opportunity Announcement (FOA), PS11-0010201SUPP12, initial review.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Formative Research on Use of Mobile Applications (“app”) to Increase HIV Testing Behavior and HIV Prevention with Positive Persons, Funding Opportunity Announcement (FOA), PS12-001, initial review.
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 aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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The IFR also requires issuers offering coverage in the individual health insurance market to also generally comply with the DOL claims procedure regulation as updated by the Secretary of HHS in the IFR for their internal claims and appeals processes.
Furthermore, PHS Act section 2719 and the IFR provide that non-grandfathered group health plans, issuers offering group health insurance coverage, and self-insured nonfederal governmental plans (through the IFR amendment dated June 24, 2011) must comply either with a State external review process or a Federal review process. The IFR provides a basis for determining when such plans and issuers must comply with an applicable State external review process and when they must comply with the Federal external review process. Plans and issuers that are required to participate in the Federal external review process must electronically elect either the HHS-administered process or the private accredited IRO process by January 1, 2012. The election requirements associated with this ICR are articulated through guidance published June 22, 2011 at
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by March 5, 2012:
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Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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MAOs and PDPs use the Bid Pricing Tool (BPT) software to develop their actuarial pricing bid. The information provided in the BPT is the basis for the plan's enrollee premiums and CMS payments for each contract year. The tool collects data such as medical expense development (from claims data and/or manual rating), administrative expenses, profit levels, and projected plan enrollment information. By statute, completed BPTs are due to CMS by the first Monday of June each year.
CMS reviews and analyzes the information provided on the Bid Pricing Tool. Ultimately, CMS decides whether to approve the plan pricing (i.e., payment and premium) proposed by each organization. CMS is requesting to continue its use of the BPT for the collection of information for CY2013 through CY2015.
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CMS requires that MA and PDP organizations submit a completed PBP and formulary as part of the annual bidding process. During this process, organizations prepare their proposed plan benefit packages for the upcoming contract year and submit them to CMS for review and approval.
CMS is requesting to continue its use of the PBP software and formulary submission for the collection of benefits and related information for CY 2013 through CY 2015. CMS estimates that 571 MA organizations and 64 PDP organizations will be required to submit the plan benefit package information in CY 2013. Based on operational changes and policy clarifications to the Medicare program and continued input and feedback by the industry, CMS has made the necessary changes to the plan benefit package submission.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of a meeting of the National Advisory Child Health and Human Development Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below in advance of the meeting.
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.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxis, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 February 3, 2012.
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)
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 chimpanzee (
The applicant requests a permit to import chimpanzee (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following families and species to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genus and species to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families and species to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families and species to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests amendment to their captive-bred wildlife registration under 50 CFR 17.21(g) to include the Andean condor (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the radiated tortoise (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for leopard (
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of issuance of permits.
We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species, marine mammals, or both. We issue these permits under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA).
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);
On the dates below, as authorized by the provisions of the ESA (16 U.S.C. 1531
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the countervailing duty order on corrosion-resistant carbon steel flat products from Korea and the antidumping duty orders on corrosion-resistant carbon steel flat products from Germany and Korea would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202) 205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
(1)
(2) The
(3) The
(4) The
(5) An
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
The Marine Mammal Commission and its Committee of Scientific Advisors on Marine Mammals will meet in open session on Tuesday, 24 January 2012, from 1:45 p.m. to 5:45 p.m.; Wednesday, 25 January 2012, from 9 a.m. to 5:30 p.m.; Thursday, 26 January 2012, from 9 a.m. to 5 p.m.; and Friday, 27 January 2012 from 9 a.m. to 4 p.m. The Commission and the Committee will meet in executive session on Tuesday, 24 January 2012, from 10:30 to 12:30 p.m.
Sheraton Anchorage Hotel, 401 E. 6th Avenue, Anchorage, AK 99501; telephone: (907) 276-8700; fax: (907) 343-3145.
The executive session will be closed to the public in accordance with the provisions of the Government in the Sunshine Act (5 U.S.C. 552b) and applicable regulations. The session will be limited to discussions of internal agency processes, personnel, and the budget of the Commission. All other portions of the meeting will be open to the public. Public participation will be allowed as time permits and as determined to be desirable by the Chairman.
The Commission and Committee will meet in public session to discuss a broad range of marine ecosystem and marine mammal matters with a focus on issues and species regarding Alaska. Although subject to change, major issues that the
Darel E. Jordan, Staff Assistant, Marine Mammal Commission, 4340 East-West Highway, Room 700, Bethesda, MD 20814; (301) 504-0087; email:
10 a.m., Friday, January 6, 2012.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Consideration of Supervisory Activities. Closed pursuant to some or all of the following: exemptions (5), (7), (8), (9)(i)(B), and 9(ii).
Mary Rupp, Secretary of the Board,
Nuclear Regulatory Commission.
Weeks of January 2, 9, 16, 23, 30, February 6, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of January 2, 2012.
1 p.m.Briefing on Proposed Rule To Revise the Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Part 51) (Public Meeting) (Contact: Jeremy Susco, (301) 415-2927).
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of January 16, 2012.
There are no meetings scheduled for the week of January 23, 2012.
There are no meetings scheduled for the week of January 30, 2012.
9 a.m.Briefing on Status of Outreach and Educational Efforts with External Stakeholders Related to the Safety Culture Policy Statement (Public Meeting) (Contact: Diane Sieracki, (301) 415-3297).
This meeting will be webcast live at the Web address—
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Rochelle Bavol, (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301) 415-1969, or send an email to
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Priority Mail Contract 37 to the competitive product list. This notice addresses procedural steps associated with this filing.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
• Attachment A—a redacted copy of Governors' Decision No. 09-6, authorizing certain Priority Mail contracts, and a certification of the Governors' vote;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list that would add Priority Mail Contract 37 under Domestic Negotiated Service Agreements;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract, customer-identifying information, and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs, make a positive contribution to covering institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2012-3 and CP2012-7 to consider the Request pertaining to the proposed Priority Mail Contract 37 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than January 6, 2012. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Natalie Rea Ward to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2012-3 and CP2012-7 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Natalie Rea Ward is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 6, 2012.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add a Global Expedited Package Services contract to the competitive product list. This notice addresses procedural steps associated with the filing.
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
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted version of the GEPS-NPR 3 model contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
• Attachment 1—an application for non-public treatment of materials filed under seal;
• Attachment 2A—a redacted version of Governors' Decision No. 11-6;
• Attachment 2B—a revised version of MCS 2510.8 GEPS-NPR;
• Attachment 2C—a redacted version of Management's Analysis of the Prices and Methodology for Determining Prices For Negotiated Service Agreements Under Global Expedited Package Services—Non-Published Rates 3;
• Attachment 2D—a list of Maximum and Minimum Prices for EMI, PMI, and GXG under GEPS-NPR 3 Contracts;
• Attachment 2E—a certified statement concerning prices for applicable negotiated service agreements under GEPS-NPR 3 rates, as required by 39 CFR 3015(c)(2);
• Attachment 3—a Statement of Supporting Justification similar to the Statement of Supporting Justification used to support the classification of GEPS-NPR 1, and as required by 39 CFR 3020.32;
• Attachment 4—a redacted version of the GEPS-NPR 3 model contract.
In the Statement of Supporting Justification, Frank Cebello, Executive Director, Global Business Management, asserts that the product is designed to increase the efficiency of the Postal Service's process, as well as enhance its ability to compete in the marketplace.
The Postal Service filed much of the supporting materials, including the related model contract, under seal.
The Commission establishes Docket Nos. MC2012-4 and CP2012-8 to consider the Request pertaining to the proposed Priority Mail Contract 37 product and the related model contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than January 6, 2012. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Natalie Rea Ward to serve as Public Representative in these dockets.
It is ordered:
1. The Commission establishes Docket Nos. MC2012-4 and CP2012-8 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Natalie Rea Ward is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 6, 2012.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to adopt certain rules pertaining to the electronic auction trading of Flexible Exchange Options (“FLEX Options”) on the Exchange's FLEX Hybrid Trading System platform.
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 is proposing to make modified versions of the Automated Improvement Mechanism (“AIM”) and Solicitation Auction Mechanism (“SAM”)—which are currently available for non-FLEX Options under Rules 6.74A and 6.74B, respectively—available for FLEX Options. The FLEX versions of the AIM and SAM mechanisms will operate substantially similar to the AIM and SAM mechanisms for non-FLEX Options. Significant distinctions are described below.
The Exchange is proposing to establish an AIM mechanism for FLEX Options, which mechanism will electronically auction certain orders for price improvement. Under the AIM process, a FLEX Trader
To be eligible, the Agency Order must be in a FLEX class designated as eligible for AIM Auctions and within the designated AIM Auction order eligibility size parameters. Such classes and size parameters will be determined by the Exchange and announced via circular to FLEX Traders. When submitting an Agency Order, an Initiating TPH must mark the Agency Order for AIM Auction processing and must also submit a contra-side second order for the same size as the Agency Order. This second order guarantees that the Agency Order will receive an execution (
Upon receipt of an Agency Order (and second order), the Exchange would commence the AIM Auction by issuing a request for responses (“RFR”), detailing the side and size of the Agency Order.
Normally, an AIM Auction ends at the conclusion of the RFR response period (which will be no less than 3 seconds). However, the proposal provides that the AIM Auction would end prior to the conclusion of the RFR response period any time an RFR response matches the BBO on the opposite side of the market from the RFR responses.
At the conclusion of the AIM Auction, the Agency Order would be allocated at the best price(s) and contra-side interest will be ranked and matched based on price-time priority,
Lastly, the Exchange proposes certain interpretation and policy provisions applicable to the AIM Auction mechanism. First, the AIM Auction may only be used where there is a genuine intention to execute a bona fide transaction. Second, it would be deemed conduct inconsistent with just and equitable principles of trade and a violation of CBOE Rule 4.1 to engage in a patter [sic] of conduct where the Initiating TPH breaks-up an Agency Order into separate orders for two (2) or few contracts for the purpose of gaining a higher allocation percentage than the Initiating TPH would have otherwise received in accordance with the allocation procedures.
The Exchange is also proposing to establish a SAM mechanism for FLEX Options, which is another mechanism that will electronically auction certain orders for price improvement. Under the SAM process, an Initiating TPH that represents agency orders may submit an Agency Order along with a second order (a solicited order(s) for the same amount as the Agency Order)
To be eligible, the Agency Order must be in a FLEX class designated as eligible for SAM Auctions and within the designated SAM Auction order eligibility size parameters determined by the Exchange (however, the eligible order size would not be less than 500 contracts). Such classes and size parameters will be determined by the Exchange and announced via circular to FLEX Traders. As explained in more detail below, each order entered into the SAM Auction would also be designated in the System as all-or-none (
Upon receipt of an Agency Order (and second order), the Exchange would commence the SAM Auction by issuing an RFR, detailing the price and size [sic] the Agency Order.
Normally, a SAM Auction ends at the conclusion of the RFR response period (which will be no less than 3 seconds). However, as with AIM Auctions, the proposal provides that the SAM Auction would end prior to the conclusion of the RFR response period any time an RFR response matches the BBO on the opposite side of the market from the RFR responses.
At the conclusion of the SAM Auction, the Agency Order would be executed against the second/solicited order unless there is sufficient size to execute the entire Agency Order at a price (or prices) that improves the proposed crossing price. In the case where there is one or more public customers or non-Trading Permit Holder broker-dealers at the proposed execution price on the opposite side of the Agency Order, the second/solicited order would be cancelled and the Agency Order would be executed
In the event the Agency Order is executed at an improved price(s) or at the proposed execution price against RFR responses and FLEX Orders, the allocation at a given price would be as follows: (i) RFR responses and FLEX Orders for the account of public customers and non-Trading Permit Holder broker-dealers will participate in the execution based on time priority; (ii) any RFR responses and FLEX Orders that are subject to a FLEX Appointed Market-Maker participation entitlement will participate in the execution based on a participation entitlement formula specified in Rule 24B.5(d)(2)(ii);
Lastly, the Exchange proposes certain interpretation and policy provisions applicable to the SAM Auction mechanism. First, the Exchange is also proposing to apply the SAM Auction mechanism to complex orders. As proposed, the Exchange may determine on a class-by-class basis to make the SAM Auction available for complex orders. In such classes, complex orders may be executed through the SAM Auction at a net debit or net credit price provided the SAM Auction eligibility requirements are satisfied and the Agency Order is eligible for the SAM Auction considering its complex order type, order origin code (
Finally, the Exchange believes the proposed AIM and SAM Auctions for FLEX Options are consistent with Section 11(a)(1) of the Act
The Exchange also believes the proposed AIM and SAM Auctions meet the requirements of the Effect vs. Execution exemption under Rule 11A2-2(T). Rule 11a2-2(T) permits an exchange member, subject to certain conditions, to effect transactions for covered accounts by arranging for an unaffiliated member to execute the transactions directly on the exchange floor. To comply with the rule's conditions, a member (i) must transmit the order from off the exchange floor, (ii) may not participate in the execution of the transaction once it has been transmitted to the member performing the execution,
In a release discussing both the COMEX and the PACE systems, the Commission noted that a member relinquishes any ability to influence or guide the execution of its order at the time the order is transmitted into the systems and, although the execution is automatic, the design of these systems insures that members do not posses any special or unique trading advantages in handling orders after transmission to the trading floor.
Furthermore, although Rule 11a2-2(T) contemplates having an order executed by an exchange member who is unaffiliated with the member initiating the order, the Commission has recognized that this requirement is not applicable when automated exchange facilities are used. For example, in considering the operation of COMEX and PACE, the Commission noted that while there is no independent executing exchange member, the execution of an order is automatic once it has been transmitted into the systems. Because the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange floors, the Commission has stated that executions obtained through these systems satisfy the independent execution requirement of Rule 11a2-2(T).
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 that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
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
• 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”)
CHX proposes to add Interpretation and Policy .01 to Article 13, Rule 2 (Emergency Suspension) regarding the suspension of a Participant's trading privileges on the Exchange. The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to add Interpretation and Policy .01 to Article 13, Rule 2 (Emergency Suspension) thereunder (“Rule 2”) regarding the suspension of a Participant's trading privileges on the Exchange. Currently, this Rule authorizes the Exchange's Chief Regulatory Officer (“CRO”) to suspend a Participant's membership with the Exchange or place other limitations on its activities if various circumstances occur, such as insolvency, failure to perform its contracts or obligations, expulsion or suspension by another self-regulatory organization or where it reasonably appears that the Participant is violating and will continue to violate any provision of the Rules of the Exchange or the federal securities laws (or rules promulgated thereunder). The Exchange proposes to permit any Officer of the Exchange designated by the CRO to suspend the trading privileges of a Participant on the Exchange's facilities pursuant to the provisions of Rule 2 if a Qualified Clearing Agency refuses to act to clear and settle the trades of that Participant. The CRO must approve any such suspensions within two (2) days of the action. If the Chief Regulatory Officer does not approve the action taken, the suspension shall be immediately lifted as of the time of his or her decision or after the expiration of two days, whichever is earlier. Suspensions pursuant to these provisions, including the appeal thereof, would otherwise be governed by the provisions of Article 13, Rule 2.
The recent actions taken with respect to MF Global, Inc. (“MF Global”) illustrate the need for a limited expansion of the emergency suspension authority of Rule 2 in the situation where the Qualified Clearing Agency is considering whether to continue to act for a Participant in the clearance and settlement of trades.
While this situation was adequately addressed under the current rule structure, the Exchange is concerned that there may be situations in which the CRO may be unavailable to issue the suspension order if NSCC signals its intention to cease to act for a CHX Participant. This concern is particularly true if the Qualified Clearing Agency were to cease to act on an intraday basis.
The Exchange also proposes to eliminate a reference to the Chief Executive Officer in Section (c) of Rule 2 and replace it with a reference to the CRO regarding appeals of suspensions under Rule 2. Before it was amended in 2006, emergency suspensions were authorized by the Chief Executive Officer.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act in general,
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 either solicited or 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”)
The Exchange proposes to delete NYSE Arca Equities Rule 7.31(w)(1) to remove the PNP Plus Order type. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
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 delete NYSE Arca Equities Rule 7.31(w)(1) to remove the PNP (Post No Preference) Plus order type.
By its terms, a PNP Order is a limit order to buy or sell that is to be executed in whole or in part on the Exchange, and the portion that is not executed is ranked on the Exchange's order book without routing any portion of the order to another market center.
The Exchange proposes to delete Rule 7.31(w)(1) and all references to the PNP Plus Order type. The rule was adopted, in part, to provide ETP Holders with an additional processing capability for PNP Orders.
In reviewing this system functionality, the Exchange has also identified that the operation of the PNP Plus Order may conflict with the proposed Plan pursuant to Rule 608 of Regulation NMS to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “Plan”), which the equities exchanges and the Financial Industry Regulatory Authority, Inc., filed with the Securities and Exchange Commission in April 2011.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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 proposed rule change would revise fees for equity and debt derivatives.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
There are certain types of equity and debt derivatives, as they are classified at DTC, that represent debt of an issuer whose coupon and yield are derived from the performance of an underlying stock, basket of stock, commodity or other index. Due to the unique nature of equity and debt derivatives, as opposed to the typical common stock or corporate bond (which are considered “Basic” at DTC), DTC currently assesses Participants a “Complex Eligibility Fee” as part of the DTC eligibility process.
Recent demand has changed the dynamics of the market for equity and debt derivatives. The asset servicing set-up is becoming more standardized as issuers are limiting the corporate action variations in order to realize operational efficiencies through economies of scale. For example, some issuers are choosing two or three basic payment structures with similar call features for all the equity or debt derivatives they issue. The ability to issue these products under a “program-like” structure has created a variation of a debt and equity derivative that requires an eligibility review more similar to that of products currently considered “Basic” at DTC.
(i) A Participant closing 15 or more equity or debt derivatives in a day will be assessed the current “Complex Eligibility Fee” ($750) for the first 14 issuances.
(ii) Beginning with the 15th issuance, the fee will be reduced to the current “Basic Eligibility Fee” ($350 or $500 depending on single versus multi CUSIP).
Issuances that contain the option to receive the underlying stock at maturity will not qualify for the tiered pricing and will continue to be assessed the “Complex Eligibility Fee” because they still require a manually intensive set-up process.
The proposed fee revisions are consistent with DTC's overall pricing philosophy to align service fees with underlying costs, discourage manual and exception processing, and encourage immobilization and dematerialization of securities. DTC intends for these fee adjustments to be effective January 2, 2012.
DTC believes the proposed rule change is consistent with the requirements of Section 17A of the Act
DTC 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.
Written comments relating to the proposed rule change have not yet been solicited or received by DTC.
The foregoing rule change has become effective upon filing 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.
All submissions should refer to File Number SR-DTC-2011-13 and should be submitted on or before January 25, 2012.
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
On November 17, 2011, the Commission extended the time period in which to either approve the SRO Proposals, disapprove the SRO Proposals, or to institute proceedings to determine whether to disapprove the SRO Proposals, to December 30, 2011.
In the SRO Proposals, the exchanges and FINRA propose to revise the existing market-wide circuit breakers, which halt trading in all NMS securities in the event of extraordinary market volatility, in order to make them more meaningful in today's high-speed electronic markets. In so doing, the exchanges and FINRA took into account the events of May 6, 2010, where the markets experienced excessive volatility in a short period of time, as well as the recommendations of the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues.
The existing market-wide circuit breakers provide for specified trading halts following certain “Level 1,” “Level 2,” and “Level 3” market declines.
Before 2 p.m.—one hour;
At or after 2 p.m. but before 2:30 p.m.—30 minutes;
At or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Before 1 p.m.—two hours;
At or after 1 p.m. but before 2 p.m.—one hour;
At or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
As described in detail in the Notices, the SRO Proposals, among other things, would: (i) Replace the DJIA with the S&P 500® Index (“S&P 500”) as the reference index; (ii) recalculate the values of the triggers daily instead of each calendar quarter; (iii) reduce the 10%, 20%, and 30% market decline trigger percentages to 7%, 13%, and 20%; (iv) shorten the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The proposed Level 1, Level 2, and Level 3 circuit breakers would operate as follows:
Before 3:25 p.m.—15 minutes;
At or after 3:25 p.m.—trading shall continue, unless there is a Level 3 halt.
Before 3:25 p.m.—15 minutes;
At or after 3:25 p.m.—trading shall continue, unless there is a Level 3 halt.
At any time—trading shall halt and not resume for the rest of the day.
Separately, there currently is pending before the Commission a proposal by the equities exchanges and FINRA to establish a new mechanism to address extraordinary market volatility in individual securities, pursuant to a national market system plan under Rule 608 of Regulation NMS to address extraordinary market volatility (the National Market System Plan to Address Extraordinary Market Volatility, or, the “Limit Up-Limit Down Plan”).
As discussed below, the Commission, in the Notices for the SRO Proposals, specifically requested comment on how the proposed changes to the market-wide circuit breakers would interact
The Commission received seven comment letters on the SRO Proposals.
The Commission also specifically requested comment on how the proposed changes would interact with the single-stock circuit breaker pilot program or, if approved, the proposed limit up/limit down mechanism for individual securities. The Commission further asked whether the market-wide circuit breaker should be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered. One commenter believed that the market-wide circuit breaker should be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, given the potential difficulties of accurately calculating the value of the S&P 500 Index in such circumstances.
Two commenters also expressed views on how market centers should treat pending orders in the event a market-wide circuit breaker is triggered. One commenter believed that orders pending with a market center at the time of a Level I or Level II circuit breaker should remain queued by the market center during the halt and be eligible for execution after the halt.
The Commission sought comment on whether a provision should be made for a closing auction in the event of a Level III circuit breaker decline. One commenter responded that allowing a closing auction under these extreme circumstances would risk greater market dislocations, and therefore was unadvisable,
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the SRO Proposals should be disapproved. Institution of such proceedings is appropriate at this time in view of the legal and policy issues raised by the SRO Proposals that are discussed below. Institution of disapproval proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, as described in greater detail below, the Commission seeks and encourages interested persons to provide additional comment on the SRO Proposals.
Pursuant to Section 19(b)(2)(B), the Commission is providing notice of the grounds for disapproval under consideration. In particular, Sections 6(b)(5) and 15A(b)(6) of the Act
The SRO Proposals would update the market-wide circuit breakers by, among other things, reducing the market decline percentage thresholds necessary to trigger a circuit breaker, shortening the duration of the resulting trading halts, and changing the reference index used to measure a market decline. The market-wide circuit breakers were not triggered during the severe market disruption of May 6, 2010, which led the exchanges and FINRA in consultation with Commission staff to assess whether the circuit breakers needed to be modified or updated in light of today's market structure. In addition, the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues recommended that the SEC and CFTC review the current operation of the market-wide circuit breakers, and consider appropriate modifications.
As discussed above, there is currently pending before the Commission a proposal by the equities exchanges and FINRA to establish the Limit Up-Limit Down Plan, which would create a new mechanism to address extraordinary market volatility in individual securities. Several commenters on the SRO Proposals stressed the need to consider the SRO Proposals together with the proposed Limit Up-Limit Down Plan, given the potential interaction between the mechanisms for moderating volatility in individual securities and those for moderating volatility market-wide. In addition, commenters
The Commission shares the desire of the exchanges and FINRA to appropriately update the market-wide circuit breakers in light of the current market structure and the lessons learned from the events of May 6, 2010. Because of the importance of both the market-wide and individual security volatility moderators to the maintenance of fair and orderly markets and the protection of investors, however, the Commission believes the SRO Proposals should be considered together with the proposed Limit Up-Limit Down Plan, to help assure these mechanisms interact appropriately with one another, and that details of the market-wide circuit breakers are fully evaluated. Accordingly, in light of the pending proposal to establish the Limit Up-Limit Down Plan, and the concerns raised by commenters, the Commission believes that questions remain as to whether the SRO Proposals are consistent with the requirements of Sections 6(b)(5) and 15A(b)(6) of the Act, including whether the proposed market-wide circuit breakers would remove impediments to and perfect the mechanism of a national market system, or protect investors and the public interest.
The Commission requests that interested persons provide written submissions of their views, data and arguments with respect to the concerns identified above, as well as any others they may have with the SRO Proposals. In particular, the Commission invites the written views of interested persons concerning whether the SRO Proposals are inconsistent with Section 6(b)(5), Section 15A(b)(6), or any other provision of the Act, or the rules and regulation thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views and arguments regarding whether the SRO Proposals should be disapproved by January 25, 2012. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by February 8, 2012.
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.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: (202) 632-6473). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: (202) 632-6467). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Federal Highway Administration (FHWA), DOT.
Notice of request for approval of a new information collection.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval of a new information collection that is summarized below under
Please submit comments by March 5, 2012.
You may submit comments identified by DOT Docket ID Number 2011-0134 by any of the following methods:
Keith Williams, (202) 366-9212, Highway Safety Specialist, Program Planning Team, Office of Safety Programs, Federal Highway Administration, Department of Transportation, 545 John Knox Road Suite 200, 1200 New Jersey Avenue SE., Room E73-405, Washington, DC 20590, Monday through Friday, except Federal holidays.
This information collection will specifically support a compendium and evaluation of how baseline information is used in individual States, the District of Columbia, Metropolitan Planning Organizations (MPOs), local and tribal agencies to select, set and evaluate performance based highway safety measures and how they affect the overall State's highway safety programs. FHWA proposes to conduct a Web-based survey to evaluate the methodologies used by State Departments of Transportation, State Governor's Highway Safety Offices, select Metropolitan Planning Organizations and local departments of transportation to identify methodologies for selecting highway safety performance measures and methodologies for setting performance targets based on those measures. Sample size will be approximately 150 to 160 persons, representing each of the State Departments of Transportation; each of the Governor's Highway Safety Offices, the District of Columbia, and select MPOs and local departments of transportation. Interview length will be approximately 30 minutes.
The surveys will be conducted by emailing a URL link to the appropriate representative within each organization. A standardized questionnaire will be
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice; Request for comments.
This is a notice and request for comments on a draft Section 4(f) Policy Paper that will provide guidance on the procedures the FHWA will follow when approving the use of land from publicly owned public parks, recreation areas, wildlife and waterfowl refuges, and public or private historic sites for Federal highway projects.
Comments must be received on or before February 3, 2012.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, or fax comments to (202) 493-2251. Alternatively, comments may be submitted to the Federal eRulemaking portal at
For questions about the notice discussed herein, contact Ms. MaryAnn Naber, Federal Preservation Officer, FHWA Office of Planning, Environment, and Realty, (202) 366-2060, or via email at
You may submit or retrieve comments online through the Federal eRulemaking portal at:
An electronic copy of this document may also be downloaded from Office of the Federal Register's home page at:
A copy of the proposed Section 4(f) Policy Paper is available for download and public inspection under the docket number noted above at the Federal eRulemaking portal at:
The Section 4(f) Policy Paper was written primarily to aid FHWA personnel with administering Section 4(f) in a consistent manner across the country and is intended to supplement the FHWA's regulations governing Section 4(f). Section 4(f) concerns the use of land from publicly owned parks, recreation areas, wildlife and waterfowl refuges, and public or private historic sites for Federal highway projects. Although these requirements are now codified at 23 U.S.C. 138 and 49 U.S.C. 303, the subject matter remains commonly referred to as “Section 4(f)” because the requirements originated in Section 4(f) of the Department of Transportation Act of 1966 (Pub. L. 89-670, 80 Stat. 931). The FHWA's Section 4(f) regulations, entitled “Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites,” were promulgated in 2008 and are codified at 23 CFR Part 774. When finalized, this draft Section 4(f) Policy Paper will replace the previous Section 4(f) Policy Paper that was issued by FHWA in 2005. Congress amended Section 4(f) in Section 6009 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144). This draft Section 4(f) Policy Paper incorporates the changes required by Section 6009 of SAFETEA-LU and the 2008 regulations.
Comments on the draft Section 4(f) Policy Paper are welcome from any interested party, including highway project applicants; Federal, State, and local resource agencies; industry trade groups; environmental organizations; and the general public. The FHWA will consider all comments received during the comment period prior to finalizing the Section 4(f) Policy Paper.
23 U.S.C. 101, 109, 138 and 139; 23 CFR 1.32 and 774; 49 U.S.C. 303; and, 49 CFR 1.48(b).
Federal Transit Administration (FTA), DOT.
Notice of limitation on claims.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) for projects in the following locations: New York, NY; Charlotte, NC; Savannah, GA; and Irving and Grapevine, TX. The purpose of this notice is to announce publicly the environmental decisions by FTA on the subject projects and to activate the limitation on any claims that may challenge these final environmental actions.
By this notice, FTA is advising the public of final agency actions subject to Section 139(l) of Title 23, United States Code (U.S.C.). A claim seeking judicial review of the FTA actions announced herein for the listed public transportation project will be barred unless the claim is filed on or before July 2, 2012.
Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353-2577 or Terence Plaskon, Environmental Protection Specialist, Office of Human and Natural Environment, (202) 366-0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9 a.m. to 5:30 p.m., EST, Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency actions by issuing certain approvals for the public transportation projects listed below. The actions on these projects, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the project to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA administrative record for the projects. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information on the project. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed projects as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA [42 U.S.C. 4321-4375], Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303], Section 106 of the National Historic Preservation Act [16 U.S.C. 470f], and the Clean Air Act [42 U.S.C. 7401-7671q]. This notice does not, however, alter or extend the limitation period of 180 days for challenges of project decisions subject to previous notices published in the
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The Surface Transportation Board has received a request from Michael Behe representing FRN, LLC (WB604-10—12/14/11) for permission to use certain data from the Board's 2010 Carload Waybill Sample. A copy of this request may be obtained from the Office of Economics.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, fax (202) 273-0487 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
a. Request for Approval of School Attendance, VA Form 21-674 and 21-674c.
b. School Attendance Report, VA Form 21-674b.
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
a. VA Forms 21-674 and 674c—34,500 hours.
b. VA Form 21-674b—3,292 hours.
a. VA Forms 21-674 and 674c—15 minutes
b. VA Form 21-674b—5 minutes.
a. VA Forms 21-674 and 674c—138,000 hours.
b. VA Form 21-674b—39,500 hours.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 5, 2012.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 5, 2012.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2011.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before February 3, 2012.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7479, FAX (202) 273-0487 or email
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
By direction of the Secretary.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends the FAA's existing flight, duty and rest regulations applicable to certificate holders and their flightcrew members operating under the domestic, flag, and supplemental operations rules. The rule recognizes the universality of factors that lead to fatigue in most individuals and regulates these factors to ensure that flightcrew members in passenger operations do not accumulate dangerous amounts of fatigue. Fatigue threatens aviation safety because it increases the risk of pilot error that could lead to an accident. This risk is heightened in passenger operations because of the additional number of potentially impacted individuals. The new requirements eliminate the current distinctions between domestic, flag and supplemental passenger operations. The rule provides different requirements based on the time of day, whether an individual is acclimated to a new time zone, and the likelihood of being able to sleep under different circumstances.
Effective January 14, 2014.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the
For technical issues: Dale E. Roberts, Air Transportation Division (AFS-200), Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-5749; email:
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. This rulemaking is promulgated under the authority described in 49 U.S.C. 44701(a)(5), which requires the Administrator to promulgate regulations and minimum safety standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This rulemaking is also promulgated under the authority described in 49 U.S.C. 44701(a)(4), which requires the Administrator to promulgate regulations in the interest of safety for the maximum hours or periods of service of airmen and other employees of air carriers.
I. Schedule Reliability
The FAA is issuing this final rule to address the risk that fatigue poses to passenger operations conducted under 14 CFR part 121. Part 121 applies to the majority of flights flown by the American public. As such, changes to the existing flight, duty and rest rules in part 121 will directly affect the flying public. This rule applies to all part 121 passenger operations, including traditional scheduled service and large charter operations. The FAA has removed the existing distinctions between domestic, supplemental and flag passenger operations because the factors leading to fatigue are universal and addressing the risk to the flying public should be consistent across the different types of operations.
This final rule addresses fatigue risk in several ways. The underlying philosophy of the rule is that no single element of the rule mitigates the risk of fatigue to an acceptable level; rather, the FAA has adopted a system approach, whereby both the carrier and the pilot accept responsibility for mitigating fatigue. The carrier provides an environment that permits sufficient sleep and recovery periods, and the crewmembers take advantage of that environment. Both parties must meet their respective responsibilities in order to adequately protect the flying public.
The final rule recognizes the natural circadian rhythms experienced by most people that causes them to be naturally more tired at night than during the day. Under the final rule, flightcrew members will be able to work longer hours during the day than during the night. Significant changes in time zones, a situation unique to aviation, are accounted for to reduce the risk to the flying public posed by “jetlag”.
The FAA has decided against adopting various provisions proposed in the NPRM. The final rule does not apply to all-cargo operations, although those carriers have the ability to fly under the new rules if they so choose. The proposal that carriers meet certain schedule reliability requirements has been dropped, as has the proposed requirement that carriers evaluate flightcrew members for fatigue. The FAA has determined that these provisions were either overly costly or impractical to implement.
This rule places a joint responsibility on the certificate holder and each flightcrew member. In order for the flightcrew member to report for an FDP properly rested, the certificate holder must provide the flightcrew member
Part 121 air carriers are currently statutorily-required to annually provide, as part of their Fatigue Risk Management Plan, fatigue-related education and training to increase the trainees' awareness of: (1) Fatigue; (2) “the effects of fatigue on pilots;” and (3) “fatigue countermeasures.” Today's rule adopts the same standard of training as required by the statute. In addition, today's rule adopts a mandatory update of the carriers' education and training program every two years, as part of the update to their FRMP. Both of these regulatory provisions merely place the existing statutory requirements in the new flight and duty regulations for the ease and convenience of the regulated parties and the FAA.
The FAA proposed a Fatigue Risk Management System (FRMS) as an alternative regulatory approach to provide a means of monitoring and mitigating fatigue. Under an FRMS, a certificate holder develops processes that manage and mitigate fatigue and meet an equivalent level of safety. The FAA is adopting that proposal largely as proposed. The FAA has also decided to extend the voluntary FRMS program to all-cargo operations, which are not required to operate under part 117. Under the FRMS provisions that this rule adds to subparts Q, R, and S of part 121, an all-cargo operator that does not wish to operate under part 117 can nevertheless utilize an FRMS as long as it has the pertinent FAA approval.
One of the regulatory concepts that this rule introduces is the restriction on flightcrew members' maximum Flight Duty Period (FDP). In creating a maximum FDP limit, the FAA attempted to address three concerns. First, flightcrew members' circadian rhythms needed to be addressed because studies have shown that flightcrew members who fly during their window of circadian low (WOCL) can experience severe performance degradation. Second, the amount of time spent at work needed to be taken into consideration because longer shifts increase fatigue. Third, the number of flight segments in a duty period needed to be taken into account because flying more segments requires more takeoffs and landings, which are both the most task-intensive and the most safety-critical stages of flight. To address these concerns, the FAA is adopting as part of the regulatory text a table limiting maximum FDP based on the time of day and the number of segments flown during the FDP period. Under today's rule an FDP begins when a flightcrew member is required to report for duty that includes a flight and ends when the aircraft is parked after the last flight and there is no plan for further aircraft movement by the same flightcrew member. The maximum FDP limit is reduced during nighttime hours to account for being awake during the WOCL; when an FDP period consists of multiple flight segments in order to account for the additional time on task; and if a flightcrew member is unacclimated to account for the fact that the unacclimated flightcrew member's circadian rhythm is not in sync with the theater in which he or she is operating. Actual time at the controls (flight time) is limited to 8 or 9 hours, depending on the time of day that the FDP commences.
In order to accommodate common operational practices, the final rule allows longer duty periods in instances where the carrier provides additional crew and adequate on-board rest facilities. The extended FDPs are laid out in a table and provide maximum credit when an operator employs a 4-man crew and provides the highest quality on-board rest facility.
This rule sets forth the limits on the number of FDPs that may be extended; implements reporting requirements for affected FDPs; and distinguishes extended FDPs due to unforeseen operational circumstances that occur prior to takeoff from those unforeseen operational circumstances that arise after takeoff. The FAA agrees that an extension must be based on exceeding the maximum FDP permitted in the regulatory tables rather than on the times that the air carrier had originally intended for an FDP, which may be considerably less than the tables allow. It is unreasonable to limit extensions on FDPs that are less than what the certificate holder can legally schedule. In addition, there is a 30-minute buffer attached to each FDP to provide certificate holders with the flexibility to deal with delays that are minimal.
Split duty rest breaks provide carriers with nighttime operations with additional flexibility. Typically split duty rest would benefit carriers who conduct late night and early morning operations where the flightcrew members would typically be afforded some opportunity to sleep, but would not receive a legal rest period. Under today's rule split duty rest must be at least 3 hours long and must be scheduled in advance. The actual split duty rest breaks may not be shorter than the scheduled split duty rest breaks. The rationale for this is that flightcrew members must, at the beginning of their FDP, evaluate their ability to safely complete their entire assigned FDP. In order to do so, they must not only know the length of the FDP, but any scheduled split duty rest breaks that they will receive during the FDP.
In formulating this rule, the FAA was particularly concerned about cumulative fatigue caused by repeatedly flying at night. Modeling shows substantially deteriorating performance after the third consecutive nighttime FDP for flightcrew members who worked nightshifts during their WOCL and obtained sleep during the day. However, if a sleep opportunity is provided during each nighttime FDP, that sleep opportunity may sustain flightcrew member performance for five consecutive nights. Based on modeling results, the FAA has determined that a 2-hour nighttime sleep opportunity each night improves pilot performance sufficient to allow up to 5 nights of consecutive nighttime operations.
The FAA has decided to rely on the expertise represented in the ARC to address the issue of reserve duty. The adopted regulatory provisions addressing reserve and unaugmented operations provide that the total number of hours a flightcrew member may spend in a flight duty period and reserve availability period may not exceed 16 hours or the maximum applicable flight duty period table plus four hours, whichever is less. This will allow most FDPs to be accommodated by a flightcrew member on short-call reserve. This rule adopts the proposal that limits the short-call reserve availability period, in which the
The FAA is adopting cumulative limits for FDP and flight-time limits. The FAA has decided to retain both of these cumulative limits because (1) the FDP limits restrict the amount of cumulative fatigue that a flightcrew member accumulates before and during flights; and (2) the flight-time limits allow the FAA to provide air carriers with more scheduling flexibility by setting higher cumulative FDP limits in this rule. This additional scheduling flexibility justifies the added restrictions on cumulative flight time, which can easily be tracked by scheduling programs currently in use throughout the industry. The FAA has decided to eliminate the cumulative duty-period limits, which should greatly simplify compliance with this section.
Carriers will be required to provide their crew with a 10-hour rest opportunity prior to commencing a duty period that includes flying. While the 10-hour rest period may include the amount of time it takes to get to or from a flightcrew member's house or hotel room, the actual amount of time required for a sleep opportunity may not be reduced below 8 hours. In addition, the length of continuous time off during a 7-day period has been extended from 24 hours under the existing rules to 30 hours. Additional time off is required for individuals whose internal clock may be off because of flipping back and forth between different time zones.
This rulemaking also addresses operations that require flying into or out of hostile areas, and politically sensitive, remote areas that do not have rest facilities. These operations range from an emergency situation to moving armed troops for the U.S. military, conducting humanitarian relief, repatriation, Air Mobility Command (AMC), and State Department missions. The applicability provision of this section now specifically articulates the two categories of operations that are affected. This section applies to operations conducted pursuant to contracts with the U.S. Government department and agencies. This section also applies to operations conducted pursuant to a deviation issued by the Administrator under § 119.57 that authorizes an air carrier to deviate from the requirements of parts 121 and 135 to perform emergency operations. This authority is issued on a case-by-case basis during an emergency situation as determined by the Administrator. The FAA concludes that these two categories are the only types of operations that warrant separate consideration because of the unique operating circumstances that otherwise limit a certificate holder's flexibility to deal with unusual circumstances.
We have analyzed the benefits and the costs associated with the requirements contained in this final rule. We provide a range of estimates for our quantitative benefits. Our base case estimate is $376 million ($247 million present value at 7% and $311 million at 3%) and our high case estimate is $716 million ($470 million present value at 7% and $593 million at 3%). The FAA believes there are also not-quantified benefits to the rule that, when added to the base case estimate, make the rule cost beneficial. The total estimated cost of the final rule is $390 million ($297 million present value at 7% and $338 million at 3%).
The FAA has made significant changes to the final rule since the NPRM. The training requirement has been substantially reduced because the FAA has determined that pilots are already receiving the requisite training as part of the statutorily required Fatigue Risk Management Plans. The FAA also has removed all-cargo operations from the applicability section of the new part 117 because their compliance costs significantly exceed the quantified societal benefits.
On September 14, 2010, the FAA published a Flightcrew Member Duty and Rest Requirements notice of proposed rulemaking (NPRM) setting out proposed flight, duty, and rest regulations intended to limit flightcrew member fatigue in part 121 operations. These proposed regulations applied to all operations conducted pursuant to part 121, and the regulations would
The FAA received over 8,000 comments in response to the NPRM. In response to the comments, the FAA has made a number of changes to the regulatory provisions proposed in the NPRM. These changes include the following:
• The mandatory provisions of the NPRM do not apply to all-cargo operations. Instead, this rule permits all-cargo operations to voluntarily opt into the new flight, duty, and rest limitations imposed by this rule.
• Certificate holders are no longer required to independently verify whether flightcrew members are fit for duty.
• Most of the daily FDP limits have been increased to provide certificate holders with more scheduling flexibility. One of the daily flight-time limits has been decreased to address safety considerations.
• The cumulative duty-period limit has been removed from this rule.
• The schedule-reliability requirement has been largely removed from the final rule. The remaining parts of the schedule-reliability process have been changed to only apply to instances in which a flightcrew member exceeds the FDP and/or flight-time limits imposed by this rule.
• The flightcrew member must now be provided with 10 hours of rest between FDP periods, but that rest is measured from the time that the flightcrew member is released from duty. The rest must provide for an 8-hour sleep opportunity.
• The amount of credit provided for split-duty rest and augmentation has been increased, and changes to the final rule make these credits easier to obtain.
The changes listed above are just some of the amendments that were made to the NPRM in response to the comments. The Discussion of Public Comments and Final Rule section of this preamble contains a discussion of the changes that were made to the NPRM in response to issues raised by the commenters.
Fatigue is characterized by a general lack of alertness and degradation in mental and physical performance. Fatigue manifests in the aviation context not only when pilots fall asleep in the cockpit in flight, but perhaps more importantly, when they are insufficiently alert during take-off and landing. Reported fatigue-related events have included procedural errors, unstable approaches, lining up with the wrong runway, and landing without clearances.
There are three types of fatigue: Transient, cumulative, and circadian. Transient fatigue is acute fatigue brought on by extreme sleep restriction or extended hours awake within 1 or 2 days. Cumulative fatigue is fatigue brought on by repeated mild sleep restriction or extended hours awake across a series of days. Circadian fatigue refers to the reduced performance during nighttime hours, particularly during an individual's WOCL (typically between 2 a.m. and 6 a.m.).
Common symptoms of fatigue include:
• Measurable reduction in speed and accuracy of performance,
• Lapses of attention and vigilance,
• Delayed reactions,
• Impaired logical reasoning and decision-making, including a reduced ability to assess risk or appreciate consequences of actions,
• Reduced situational awareness, and
• Low motivation to perform optional activities.
A variety of factors contribute to whether an individual experiences fatigue as well as the severity of that fatigue. The major factors affecting fatigue include:
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Scientific research and experimentation have consistently demonstrated that adequate sleep sustains performance. For most people, 8 hours of sleep in each 24-hour period sustains performance indefinitely. Sleep opportunities during the WOCL are preferable because sleep that occurs during the WOCL provides the most recuperative value. Within limits, shortened periods of nighttime sleep may be nearly as beneficial as a consolidated sleep period when augmented by additional sleep periods, such as naps before evening departures, during flights with augmented flightcrews, and during layovers. Sleep should not be fragmented with interruptions. In addition, environmental conditions, such as temperature, noise, and turbulence, impact how beneficial sleep is and how performance is restored.
When a person has accumulated a sleep debt, recovery sleep is necessary to fully restore the person's “sleep reservoir.” Recovery sleep should include at least one physiological night, that is, one sleep period during nighttime hours in the time zone in which the individual is acclimated. The average person requires in excess of 9 hours of sleep a night to recover from a sleep debt.
Several aviation-specific work schedule factors
The FAA believes that its current regulations do not adequately address the risk of fatigue. The impact of this risk is greater in passenger operations due to the number of persons placed at risk. Presently, flightcrew members are effectively allowed to work up to 16 hours a day (regardless of the time of day), with all of that time spent on tasks directly related to aircraft operations. The regulatory requirement for 9 hours of rest is regularly reduced, with flightcrew members spending rest time traveling to or from hotels and being provided with little to no time to decompress. Additionally, certificate holders regularly exceed the allowable duty periods by conducting flights under part 91 instead of part 121, where the applicable flight, duty and rest requirements are housed. As the National Transportation Safety Board repeatedly notes, the FAA's regulations do not account for the impact of circadian rhythms on alertness. The entire set of regulations is overly complicated, with a different set of regulations for domestic operations, flag operations, and supplemental operations. In addition, these regulations do not consider other factors that can lead to varying degrees of fatigue. Instead, each set of operational rules (
The NTSB has long been concerned about the effects of fatigue in the aviation industry. The first aviation safety recommendations, issued in 1972, involved human fatigue, and aviation safety investigations continue to identify serious concerns about the effects of fatigue, sleep, and circadian rhythm disruption. Currently, the NTSB's list of Most Wanted Transportation Safety Improvements includes safety recommendations regarding pilot fatigue. These recommendations are based on two accident investigations and an NTSB safety study on commuter airline safety.
In February 2006 the NTSB issued safety recommendations after a BAE-J3201 operated under part 121 by Corporate Airlines struck trees on final approach and crashed short of the runway at Kirksville Regional Airport, Kirksville, Missouri. The captain, first officer, and 11 of the 13 passengers died. The NTSB determined the probable cause of the October 19, 2004 accident was the pilots' failure to follow established procedures and properly conduct a non-precision instrument approach at night in instrument meteorological conditions. The NTSB concluded that fatigue likely contributed to the pilots' performance and decision-making ability. This conclusion was based on the less than optimal overnight rest time available to the pilots, the early report time for duty, the number of flight legs, and the demanding conditions encountered during the long duty day.
As a result of the accident, the NTSB issued the following safety recommendations related to flight and duty time limitations: (1) Modify and simplify the flightcrew hours-of-service regulations to consider factors such as length of duty day, starting time, workload, and other factors shown by recent research, scientific evidence, and current industry experience to affect crew alertness (recommendation No. A-06-10); and (2) require all part 121 and part 135 certificate holders to incorporate fatigue-related information similar to the information being developed by the DOT Operator Fatigue Management Program into initial and recurrent pilot training programs. The recommendation notes that this training should address the detrimental effects of fatigue and include strategies for avoiding fatigue and countering its effects (recommendation No. A-06-10).
The NTSB's list of Most Wanted Transportation Safety Improvements also includes a safety recommendation on pilot fatigue and ferry flights conducted under 14 CFR part 91. Three flightcrew members died after a Douglas DC-8-63 operated by Air Transport International was destroyed by ground impact and fire during an attempted three-engine takeoff at Kansas City International Airport in Kansas City, Missouri. The NTSB noted that the flightcrew conducted the flight as a maintenance ferry flight under part 91 after a shortened rest break following a demanding round trip flight to Europe that crossed multiple time zones. The NTSB further noted that the international flight, conducted under part 121, involved multiple legs flown at night following daytime rest periods that caused the flightcrew to experience circadian rhythm disruption. In addition, the NTSB found the captain's last rest period before the accident was repeatedly interrupted by the certificate holder.
In issuing its 1995 recommendations, the NTSB stated that the flight time limits and rest requirements under part 121 that applied to the flightcrew before the ferry flight did not apply to the ferry flight operated under part 91. As a result, the regulations permitted a substantially reduced flightcrew rest period for the nonrevenue ferry flight. As a result of the investigation, the NTSB reiterated earlier recommendations to (1) finalize the review of current flight and duty time limitations to ensure the limitations consider research findings in fatigue and sleep issues and (2) prohibit certificate holders from assigning a flightcrew to flights conducted under part 91 unless the flightcrew met the flight and duty time limits under part 121 or other applicable regulations (recommendation No. A-95-113).
In addition to recommending a comprehensive approach to fatigue with flight duty limits based on fatigue research, circadian rhythms, and sleep and rest requirements, the NTSB has also stated that a Fatigue Risk Management System (FRMS) may hold promise as an approach to dealing with fatigue in the aviation environment. However, the NTSB noted that it considers fatigue management plans to be a complement to, not a substitute for, regulations to address fatigue.
As part of this rulemaking action, the FAA chartered an aviation rulemaking committee (ARC) on June 24, 2009. The FAA brought together pilots, airlines, and scientific experts to collaborate and develop options for an FAA-proposed rulemaking to help mitigate pilot fatigue. The ARC provided a forum for the U.S. aviation community to discuss current approaches to mitigate fatigue found in international standards (
On August 1, 2010, the President signed the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Pub. L. 111-216). Section 212 of Public Law 111-216 required “the FAA Administrator to issue regulations to limit the number of flight and duty time hours allowed for pilots to address pilot fatigue.” This section, in subsection 212(a)(3), set a deadline of 180 days for the FAA to publish an NPRM and 1 year for the FAA to issue a final rule.
On September 14, 2010, the FAA published in the
The NPRM provided for a 60-day comment period, which ended on November 15, 2010. Following publication of the NPRM, the FAA received a number of requests to extend the comment period and to clarify various sections of the preamble, regulatory text, and the Regulatory Impact Analysis (RIA). In response, the agency published two actions in the
The first action was a “Notice of procedures for submission of clarifying questions.”
The second action was a “Response to requests for a comment period extension.”
The FAA received more than 8,000 comment submissions, containing multiple comments on various sections of the preamble and the rule. Many comment submissions also included specific recommendations for changes and clarifications.
In the NPRM, the FAA stated that fatigue factors are “universal.”
Most people need eight hours of sleep to function effectively, most people find it more difficult to sleep during the day than during the night, resulting in greater fatigue if working at night; the longer one has been awake and the longer one spends on task, the greater the likelihood of fatigue; and fatigue leads to an increased risk of making a mistake.
The National Air Carrier Association (NACA) and a number of air carriers operating non-scheduled flights objected to the proposed rule applying to supplemental operations. These industry commenters stated that non-scheduled operations require additional scheduling flexibility because they are fundamentally different from scheduled operations. The industry commenters stated that, unlike scheduled operations, non-scheduled operations provide on-demand operations on behalf of private and government consumers on a timetable that is determined by the consumer. According to the industry commenters, non-scheduled carriers do not have regularly-set schedules that they know months in advance, but are instead called to fly with little advance notice, making it more difficult to plan flightcrew member flight times and rest periods. The industry commenters emphasized that this difficulty is exacerbated by the fact that non-scheduled operations' flight times (especially departure times) are controlled largely by the consumer and not the air carrier.
The non-scheduled industry commenters also asserted that non-scheduled carriers serve remote, sometimes hostile locations, with no established crew bases. Thus, they do not have the same extensive infrastructure that scheduled operations have access to and must deadhead flightcrew members into remote locations in order to be able to swap out flightcrew members during an operation. These commenters emphasized that the certificate holders running non-scheduled operations are largely small businesses that will have difficulty adjusting to the burdens imposed by this rule.
Based on the differences between non-scheduled and scheduled operations, the industry commenters stated that a “one-size-fits-all” approach does not work for non-scheduled operations. The industry commenters stated that the existing regulations governing supplemental operations have existed for over 60 years, and that changing these regulations will adversely affect air security and national defense missions conducted through the use of non-scheduled operations. The commenters emphasized that the existing supplemental flight, duty, and rest regulations ensure aviation safety by containing additional rest requirements that are not a part of this rule. In conclusion, the industry commenters suggested that the FAA either: (1) Retain the existing flight, duty, and rest regulations governing supplemental operations, and/or (2) adopt the alternative proposal put forward by the industry commenters.
In addition to the concerns expressed by non-scheduled air carriers, the Cargo Airline Association (CAA) and a number of air carriers operating all-cargo flights have also objected to the
The commenters also stated that the cargo industry is composed of both scheduled and on-demand operators, and that it specializes in express delivery services. To effectuate these express delivery services, some all-cargo carriers do not maintain U.S. domicile bases and regularly operate long-haul flights and point-to-point operations outside the United States, traveling across multiple time zones at all hours of the day and night. The industry commenters also stated that all-cargo carriers regularly operate around the world in all directions with extended overseas routings, not with quick overnight turns at foreign destinations. This results in a lower aircraft utilization rate than domestic passenger operations. According to the industry commenters, these types of nighttime and around-the-world operations are the norm for all-cargo carriers.
The all-cargo industry commenters added that, similar to non-scheduled operations, some all-cargo operations also fly to remote, undeveloped, and sometimes hostile locations. According to the industry commenters, these types of operations are driven by the same considerations as similar non-scheduled operations: (1) The schedule is determined primarily by the customer, and (2) there is a lack of infrastructure, which necessitates deadheading in flightcrew members. The industry commenters emphasized that many all-cargo carriers currently provide their flightcrew members with split duty rest while cargo is being sorted at sorting facilities, and that the carriers have invested millions of dollars in high-quality rest facilities. The industry commenters also stated that flightcrew members working in all-cargo operations fly fewer total hours than their passenger-transporting counterparts. The industry commenters concluded by asking the FAA to either: (1) Retain the existing flight, duty, and rest regulations that govern supplemental operations, or (2) adopt the alternative proposal that they have included in their comments.
Conversely, a number of labor groups submitted comments approving of a single flight, duty, and rest standard. These groups stated that they were “pleased that the FAA has acknowledged the current science and recognizes that pilot fatigue does not differ whether the pilot is operating domestically, internationally or in supplemental operations.” The NTSB also expressed support for a single flight, duty, and rest standard, commending the proposed rule for recognizing that “human fatigue factors are the same across [domestic, flag, and supplemental] operations and science cannot support the notion of allowing longer duty hours for certain subgroups.” Numerous individual commenters have also stated that the existing 16-hour duty periods utilized by supplemental operations result in an unsafe amount of fatigue.
In addition to the concerns expressed by the preceding comments, United Air Lines (United) objected to the applicability of this rule to flightcrew members who conduct only part 91 operations on behalf of part 121 certificate holders. United stated that the original reason for the applicability of this rule to part 91 operations on behalf of part 121 certificate holders was to ensure that flightcrew members operating under part 121 did not use part 91 to avoid their flight, duty, and rest requirements under part 121. Because flightcrew members who only conduct part 91 operations cannot conduct part 121 flights, United argued that these flightcrew members should not be subject to this rule.
The FAA also received a number of other questions and concerns about the applicability of this rule. The NetJets Association of Shared Aircraft Pilots (NJASAP) asked how this rule would apply to certificate holders who operate under several different parts of the regulation (
In response to concerns expressed by part 135 certificate holders, the FAA emphasizes that this rule does not apply to part 135 operations. If, in the future, the FAA initiates a rulemaking to change the existing part 135 flight, duty, and rest regulations, the FAA will solicit comments from the affected stakeholders and respond to part-135-specific concerns at that time.
Turning to concerns expressed by United, this rule applies to some part 91 operations because many flightcrew members involved in part 121 operations have routinely used part 91 as a way of exceeding the limits imposed by the part 121 flight, duty, and rest requirements. However, the FAA agrees with United that there is no reason to require flightcrew members who do not fly any part 121 operations to comply with part 121 flight, duty, and rest requirements. Accordingly, the FAA has amended this rule so that it applies to flightcrew members operating under part 91 only if at least one their flight segments is operated under part 117. Flightcrew members operating under part 91 and who do not have any flight segments subject to part 117 (
Turning to concerns expressed by air carriers conducting all-cargo operations, as discussed in the regulatory evaluation, the FAA has determined that this rule would create far smaller benefits for all-cargo operations than it does for passenger operations. Consequently, the FAA is unable to justify imposing the cost of this rule on all-cargo operations. The FAA notes that in the past it has excluded all-cargo operations from certain mandatory requirements due to the different cost-benefit comparison that applies to all-cargo operations. For example, in 2007, the FAA excluded all-cargo operations of airplanes with more than two engines from many of the requirements of the extended range operations (ETOPS) rule because the cost of these provisions for all-cargo operations relative to the potential societal benefit was simply too high.
Based on the cost-benefit analysis of this rule and its past precedent, the FAA has amended this rule to make compliance with part 117 voluntary for all-cargo operations and to allow those operations to continue operating under the existing part 121 flight, duty, and rest regulations if they choose to do so. As such, this rule now allows all-cargo operations to voluntarily determine, as part of their collective bargaining and business decisions, whether they wish to operate under part 117.
In order to prevent manipulation of this voluntary provision, certificate holders who wish to operate their all-cargo operations under part 117 cannot pick and choose specific flights to operate under this rule. Instead, the certificate holders can only elect to operate under part 117: (1) All of their all-cargo operations conducted under contract to a U.S. government agency; and (2) all of their all-cargo operations
Turning to the objections expressed by non-scheduled passenger operations, the FAA notes that existing regulations set out different flight, duty, and rest standards for part 121 domestic, flag, and supplemental operations. Under these regulations, supplemental operations consist of non-scheduled, all-cargo, and public-charter flights. The existing regulations provide supplemental operations with significant scheduling flexibility because they allow air carriers conducting supplemental operations to schedule unaugmented flightcrew members for 16-hour FDPs
The FAA acknowledges that this rule will significantly impact supplemental passenger operations because it reduces the existing 16- and 30-hour across-the-board limits. This section discusses these reductions and why they are justified in light of the flexibility concerns of non-scheduled passenger operations. The other changes made by this rule that affect supplemental operations are discussed in the other parts of this preamble.
The FAA has decided to impose the same FDP limits on supplemental passenger operations as other part 121 operations because it has determined that the 16-hour unaugmented FDP and the 30-hour augmented FDP permitted by existing supplemental flight, duty, and rest regulations are almost always unsafe for passenger operations.
In determining that a 16-hour unaugmented and a 30-hour augmented FDP is unsafe for passenger operations, the FAA has also taken into account the fact that aviation-specific data shows that FDPs of this length significantly increase the risk of an accident. A study published in 2003 analyzed the accident rate of pilots as a function of the amount of time that the pilots spent on duty.
[T]he proportion of accidents associated with pilots having longer duty periods is higher than the proportion of longer duty periods for all pilots. For 10-12 hours of duty time, the proportion of accident pilots with this length of duty period is 1.7 times as large as for all pilots. For pilots with 13 or more hours of duty, the proportion of accident pilot duty periods is over five and a half times as high.
Because studies examining the national accident rate and aviation-specific accidents have both shown that working over 13 hours significantly increases the risk of an accident, the FAA has decided to disallow the 16-hour unaugmented and 30-hour augmented FDPs currently permitted in supplemental passenger operations by subjecting supplemental passenger operations to the same FDP limits as other part 121 passenger operations. The effect that other provisions of this rule will have on supplemental passenger operations and the reasons why the FAA has chosen to adopt these provisions are discussed in the corresponding portions of this preamble.
The FAA understands that including supplemental passenger operations in this rule will take away a portion of the scheduling flexibility currently enjoyed by non-scheduled passenger operations. However, this rule contains a number of provisions that ease the burden of current rules on non-scheduled operations in a way that does not decrease safety.
The most significant way in which this rule eases the burden of existing rules on supplemental passenger operations is the elimination of compensatory rest requirements. Under the existing rules, a pilot who flies an aircraft for over 8 hours in a supplemental operation must receive a compensatory rest period that is 16 hours or longer (depending on whether the flight was augmented) at the conclusion of his or her duty day. This compensatory rest requirement imposed a significant burden on supplemental passenger operations because pilots had to be provided with at least 16 hours of rest simply for flying for 9 hours. In addition, the FAA found that by focusing on flight time and not on FDP, the existing supplemental flight, duty, and rest regulations led to counterintuitive results in which long 16- and 30-hour FDPs were permitted with only a 9-hour required rest period, but a 9-hour flight time with a relatively-short FDP resulted in a 16- to 18-hour required rest period.
In order to address the concerns discussed in the preceding paragraph and because there was an absence of scientific data showing that rest periods providing for more than 8 hours of sleep were always necessary to combat transient fatigue, this rule eliminates the existing compensatory rest requirements for supplemental passenger operations. The removal of this additional rest requirement will allow certificate holders conducting non-scheduled passenger operations to fly augmented international operations, including those that are under contract with the United States Government, without having to provide flightcrew members with an additional 6 hours of rest at the end of the operation. In addition, to ensure that certificate holders
Another example of a provision in this rule that benefits supplemental passenger operations is the increase of the flight-time limits for augmented and unaugmented flights. This increase will allow certificate holders conducting supplemental operations to schedule unaugmented flightcrew members for 9 hours of flight time during peak circadian times after providing them with only 10 hours of rest. The existing regulations would require certificate holders conducting supplemental operations to provide their flightcrew members with 18 hours of rest after an operation involving 9 hours of unaugmented flight time.
In addition to including provisions that ease the burden of the maximum-FDP-limit reduction on supplemental operations, the FAA has also made adjustments to this rulemaking in response to concerns raised by air carriers (certificate holders) conducting non-scheduled passenger operations. Thus, the FAA has: (1) Increased the unaugmented and augmented FDP limits in Tables B and C, (2) increased the amount of the split-duty credit and made that credit easier to obtain, and (3) largely eliminated the scheduling reliability requirements that were proposed in the NPRM. All of these adjustments were made, at least in part, in response to the concerns raised by certificate holders conducting non-scheduled operations, and they should significantly ease the burden of this rule on these types of operations. In making these adjustments, the FAA has, where possible, incorporated into this rule portions of the alternative proposal put forward by the industry commenters who conduct non-scheduled passenger operations.
While air-carrier business models for passenger operations may differ, the factors that give rise to unsafe levels of fatigue are the same for each flightcrew member involved in these operations. A flightcrew member working a 16 or 30-hour FDP as part of a supplemental passenger operation will not be less tired simply because he or she is working in a supplemental type of operation instead of a domestic type operation. To account for this fact and ensure that fatigue is limited to safe levels, the FAA has decided to set a single flight, duty, and rest standard for all part 121 certificate holders conducting passenger operations. The FAA is sympathetic to the fact that supplemental passenger operations require additional flexibility that is not required by other business models and as a result, may bear a disproportionate cost of this rule. To ameliorate the cost of this rulemaking on supplemental operations, this rule contains supplemental-friendly provisions and adjustments that do not have an adverse effect on safety. However, the flexibility and cost-savings required by supplemental passenger operations can no longer be used to justify 16 and 30-hour FDPs for these operations because scientific studies have shown that FDPs of this length significantly increase the risk of an aviation accident that could injure passengers onboard an aircraft.
In response to NJASAP's question, the FAA notes that this rule applies to all part 121 certificate holder passenger operations and all part 121 and part 91 operations where an FDP includes at least one flight segment conducted under part 117. Thus, if a flightcrew member flies one or more segments of an FDP in passenger-carrying operations, but also flies a part 91 positioning flight as part of that FDP, the part 91 flight would have to be conducted under part 117. Parts 135 and 91K have their own set of flight, duty, and rest requirements that will continue to apply to those operations.
The NPRM included definitions specific to this part. The definitions adopted in this rule are in addition to those in §§ 1.1 and 110.2. In the event that terms conflict, the definitions in part 117 control for purposes of the flight and duty regulations adopted in this rule. The section below provides a discussion of the specific definitions used in the final rule.
The FAA proposed to define “acclimated” as a condition in which a flightcrew member has been in a theater for 72 hours or has been given at least 36 consecutive hours free from duty.
The Airline Pilots Association (ALPA), the Allied Pilots Association (APA), the Coalition of Airline Pilots Associations (CAPA), and the Independent Pilots Association (IPA) stated that acclimated should mean a condition in which a flightcrew member has been in a new theater for the first 72 hours since arriving and has been given at least 36 consecutive hours free from duty during the 72 hour period. Also, the Flight Time Aviation Regulation Committee and Flightcrew Representatives (representing labor) (Flight Time ARC) supported the suggested, revised definition. These commenters noted that according to established science, three consecutive local nights' rest is required to become acclimated. They also noted that Cap 371 provides for three consecutive local nights rest to become acclimated.
NACA, North American Airlines (NAA), World Airways, and Atlas Air Worldwide Holdings, Inc. (Atlas) contended that the proposed definition should be revised to allow 30 consecutive hours free from duty instead of 36 hours.
NACA and NAA said that it is important in regulations controlling both schedules and operations that the extended rest periods be consistent across domestic and international operations. NACA, NAA, and World Airways said that the FAA's proposed acclimation time should be changed to reflect the agency's proposed 168-hour look-back rest period of 30 hours. (See § 117.25(b)). These commenters believed that 30 hours is appropriate because any further time to acclimate may preclude flightcrew members from returning to their home base as flightcrew members, which becomes important in commercial operations where flight hours are guaranteed.
World Airways said that its recommendation of 30 hours free from duty is within the range the ARC discussed as sufficient for acclimation to occur. Atlas said that there is no scientific justification for selecting 36 as the minimum number of consecutive hours. Atlas further commented that subsequent to publication of the NPRM, the FAA clarified its definition of acclimated, stating that the computation is based on actual, not scheduled, operations. Atlas believed that this clarification needs to be incorporated into the definition as follows: “Time in theater begins upon block in at an airport more than four time zones from the previous acclimated location.”
In response to the above comments, the FAA is not persuaded by the argument that acclimation only can occur when the flightcrew member is in a new theater for 72 hours and has been given 36 consecutive hours free from duty during that period. The Flight Time ARC did receive information from the sleep specialists that an individual attempting to acclimate to a new time zone will adjust his or her clock approximately one hour per day for each hour of time zone difference. 75 FR 55852, 55861 (Sep. 14, 2010). The ARC, however, concluded that, based on its collective experience, acclimation can
The FAA also declines to accept the suggestion that a 30 hour rest period is adequate to acclimate compared to the 36 hour period proposed in the NPRM. The ARC recommended a 30 to 36 hour layover rest period. The FAA decided to propose the 36-hour rest period because it provides for one physiological night's rest and then opportunity for a shorter rest period. The agency finds that the more conservative approach is appropriate to provide the more meaningful opportunity for rest.
United Parcel Service Co. (UPS) commented that administrative duties should be exempted or removed from the scope of flight duty when determining flightcrew member acclimation. UPS further commented that if flightcrew members revised company manuals or navigation charts during a duty free period (layover) or prior to report time, it is possible that the flightcrew members would not satisfy the definition of being acclimated or could drive different FDP limits based on when they claim their duties started.
In response to UPS' concern, to acclimate a flightcrew member under this rule, the certificate holder must provide the required rest and cannot assign any duties during the rest period. Similarly, it is the flightcrew member's responsibility to take advantage of the period and rest accordingly. If a flightcrew member independently decides to perform administrative type duties during this time period, as described by the commenter, the flightcrew member is considered acclimated regardless of whether he or she actually rested during this time period.
While the FAA did not propose this term, ALPA, CAPA, Flight Time ARC, and the Southwest Airlines Pilots Association (SWAPA) suggested including this term. They suggested that acclimated local time means the local time at the location where the pilot last had greater than 36 hours free from duty in the first 72 hours in theater. IPA recommended the same definition, except it replaced the term “pilot” with “flightcrew member.” In support of their recommendation, ALPA, CAPA, and Flight Time ARC said this new definition would provide an unambiguous time for applying the definition of “nighttime duty period” and for entering the FDP and flight time limit tables. They further said that the wording in the NPRM concerning acclimated or home base time left many questions of interpretation. For example, a USA-based pilot who acclimates in Europe and then subsequently flies to Japan would, under the current NPRM wording, enter the tables at home-base time instead of Europe time. The commenters also stated that the exact location of acclimation must be known to determine future loss of acclimation. Under their proposal, the commenters contended that both the tables and the definition of nighttime flight duty period would use the new term, “acclimated local time.”
The FAA has accommodated these concerns by changing the heading of Tables A, B, and C to reflect acclimated time. In addition, the FAA clarifies that a flightcrew member is considered acclimated based on which rest he or she was given first. If the flightcrew member completes 36 consecutive hours of rest prior to being in theater for 72 hours, then the flightcrew member is acclimated at the time that the 36-hour period ends and he or she is acclimated at the location that the rest occurred.
According to the proposed definition, “Airport/standby reserve” means a defined duty period during which a flightcrew member is required by a certificate holder to be at, or in close proximity to, an airport for a possible assignment.
UPS said that the FAA's definition of airport/standby reserve is too vague and is open to interpretation. It recommended revising the definition to mean an assignment that requires a flightcrew member to be in a position to begin preflight activities following notification of an assignment without requiring additional travel time to arrive for the operation.
NACA and NAA did not believe that the definition is necessary because airport/standby reserve is an assignment within an FDP. If the term is adopted, NACA and NAA recommended that the term be defined as a duty period during which a flightcrew member is required by a certificate holder to be at, or in close proximity to, an airport for a possible assignment, and to show at the departure gate or aircraft within one hour.
Atlas contended that the FAA did not clarify the relationship of airport/standby reserve and short-call reserve in its clarification document published after the NPRM. This commenter noted that according to the FAA's clarification, airport/standby reserve and short-call reserve are mutually exclusive. Atlas said that the distinction was explained as whether or not the flightcrew member is “at the airport or in close proximity to the airport.” If at or in close proximity to the airport, a flightcrew member is deemed to be on airport/standby reserve, this suggests that a flightcrew member on short-call reserve in a hotel room near an airport could be deemed to be on airport/standby reserve. Atlas believed the distinction is important because it determines if the reserve is counted as part of the FDP. Atlas argued that airport/standby reserve means a defined duty period at an on-airport facility to which a flightcrew member has been required to report by a certificate holder immediately following assignment (usually within one hour) and at which no rest facilities are available or no rest is scheduled.
The FAA agrees that the proposed terminology could be confusing and has modified the term to mean a duty period during which a flightcrew member is required by a certificate holder to be at an airport for possible assignment.
The NPRM defined “augmented flightcrew” as a flightcrew that has more than the minimum number of flightcrew members required by the airplane type certificate to operate the aircraft to allow a flightcrew member to be replaced by another qualified flightcrew member for in-flight rest.
A number of industry commenters objected to the fact that the proposed augmented flightcrew definition did not allow a flight engineer to augment a pilot. These commenters stated that adding a flight engineer to a flightcrew has a number of safety benefits. The commenters added that their inability to augment with a flight engineer would result in three-seat aircraft being retired prematurely, which would raise the costs of this rule.
This rule does not allow augmentation with a flight engineer for
With regard to three-seat aircraft, even though this rule does not give augmentation credit for a flight engineer to augment a pilot, it does not prohibit flight engineers from working on three-seat aircraft. All this rule states is that, without additional pilots, a flightcrew that has a flight engineer would not be considered augmented. Because a flight engineer could still work on a three-seat aircraft under the terms of this rule, the FAA does not believe that the above limitation on augmentation would lead to the premature retirement of three-seat aircraft.
The NPRM proposed that a “calendar day” means a 24-hour period from 0000 through 2359.
Alaska Airlines said that while the FAA contends in its clarifying document that the calendar day for the flightcrew member's home base should be sufficient, calendar day as defined in the NPRM does not provide this clarification. Alaska Airlines instead recommended that a calendar day means a 24-hour period from 0000 through 2359 local time at the flightcrew member's home base.
Boeing Commercial Airplanes (Boeing) suggested a similar definition to address frequent transitions between time zones. Boeing further stated that rules such as the ones proposed in the NPRM are implemented in computerized optimization systems for crew scheduling, and as a result, ambiguities in the rules can lead to different interpretations.
The FAA has amended this term to include reference to Coordinated Universal Time or local time. This is consistent with the definition of calendar day in section 121.467(a) (Flight attendant duty period limitations and rest requirements: Domestic, flag, and supplemental operations).
The FAA did not propose a definition for this term; ALPA, CAPA, SWAPA, Flight Time ARC, and Federal Express Air Line Pilots Association, International (FedEx ALPA) said that the proposed § 117.27 limits consecutive nighttime flight duty periods to three periods. To avoid confusion in applying § 117.27, the commenters believed that the term “consecutive night duty period” should be defined. They recommended that consecutive night duty period mean two or more night flight duty periods that are not separated by at least a part § 117.25 rest between the duty periods that encompasses a physiological night's sleep (1 a.m. to 7 a.m. at home base or acclimated local time). IPA suggested the adoption of a similar definition.
The FAA declines defining the term consecutive night flight duty period and instead includes a provision in § 117.27 to address the commenters' concerns. Section 117.27 now specifies that the consecutive-night provisions apply to consecutive flight duty periods that infringe on the WOCL. The WOCL is defined later in this section.
As proposed, “deadhead transportation” means transportation of a flightcrew member as a passenger, by air or surface transportation, as required by a certificate holder, excluding transportation to or from a suitable accommodation.
Air Transport Association of America, Inc. (ATA) suggested removing the word “passenger” from the definition because the FAA should not assume that deadhead transportation should be limited to flightcrew members characterized as passengers when not all carriers carry passengers. Similarly, UPS commented that the proposed definition fails to address deadhead transportation on aircraft not configured for passenger operations (
The FAA agrees with the above commenters and has modified the term to apply to the transportation of a flightcrew member as a passenger or a non-operating flightcrew member. The FAA has also added two clarifying statements to the definition. The first is that all time spent in deadhead transportation is duty and is not rest. This provision was copied from proposed § 117.29 Deadhead transportation. Secondly, the FAA includes in this definition that deadhead transportation is not considered a segment for purposes of determining the maximum flight duty period in Table B.
The NPRM defines “duty” to mean any task, other than long-call reserve, that a flightcrew member performs on behalf of the certificate holder, including but not limited to airport/standby reserve, short-call reserve, flight duty, pre-and post-flight duties, administrative work, training, deadhead transportation, aircraft positioning on the ground, aircraft loading, and aircraft servicing.
Industry commenters largely rejected the proposition that short-call reserve be considered duty. They argued that this classification is inappropriate and unrelated to effective fatigue mitigation. They also stated that the only requirement or company task a pilot has on short call reserve is to be available to be contacted. Otherwise, the pilot is free to do what he or she wants and plans the day to take advantage of rest opportunities or any other activities as he or she desires, just as a lineholder would. Industry also largely objected to the classification of short-call reserve as duty. ALPA, CAPA, FedEx ALPA, SWAPA and APA all commented favorably on short call reserve being considered duty.
As stated in the NPRM, the FAA's rationale for this proposal was that while on short-call reserve, the flightcrew member can expect that he or she will not receive an opportunity to rest prior to commencing an FDP. Additionally, the flightcrew member is required to limit his or her action sufficiently so that he or she can report to the duty station within a fairly short timeframe. The FAA believed that this time should be accounted for under the cumulative limitations and therefore proposed that short-call reserve be considered duty.
However, the commenters argued that a flightcrew member on short-call reserve has the same predictable rest and sleep opportunities as a regularly-scheduled lineholder and that being on reserve cannot entail significant workload and thereby be fatiguing. The FAA accepts that while reserve cannot be categorized as “rest” it does not necessarily fit squarely with being considered duty either. As the commenters correctly pointed out, time
ATA, NACA, UPS, United, Continental Airlines, Inc. (Continental), Alaska Airlines, NAA, Delta Air Lines (Delta), and World Airways stated that the proposed definition of duty is too broad, operationally unworkable, and not clear regarding accountability. They objected to the inclusion of the terms “any task,” “on behalf of the certificate holder,” and “administrative work” in the definition. ATA provided the example of a professional pilot who routinely performs tasks such as refreshing outdated publications, watching videos for recurrent training, and reading and responding to emails. Because a flightcrew member can perform these tasks at a time and place of his or her choosing, the commenters argued that a certificate holder has no way of knowing or controlling the pertinent flightcrew member conduct.
ATA asserted that the inclusion of administrative but not labor-related work in the definition does not make sense because no material distinction exists between administrative tasks performed on behalf of management and similar tasks performed on behalf of labor.
Alaska Airlines said that the FAA in its clarifying document noted that the term “administrative work” is readily understandable; however, the commenter noted that the term's role in fatigue and in the context of the regulation is vague. The commenter believed that the term needs further clarification and should only include work associated with flight operations.
Continental and United said that the definition of duty considers administrative work in the same way that it assesses flight duty. They contend that this is inappropriate when applied to the cumulative duty restrictions discussed in proposed § 117.23.
Alaska Airlines suggested that the FAA make clear in the final rule that duty only includes activities that the carrier can directly control. ATA recommended clarifying the definition by replacing the phrase “on behalf of the certificate holder” with “directed by a certificate holder on company property.” NACA, UPS, Delta, and World Airways suggested revising the definition of duty to mean “any task, other than long-call and short-call reserve, that is directed by the certificate holder * * *” NAA believed the term “on behalf of the certificate holder” should be replaced with “is assigned by the certificate holder.”
UPS contended that the FAA must address the issue of management pilot duty and suggested that management pilot duty include all time spent during company business-related meetings and other business-related activity conducted on company property. UPS argued that if this is not addressed, management pilots will effectively become non-flying pilots.
NACA, World Airways, and NAA recommend deleting the term “administrative work” because it is too vague and inclusive of issues that have nothing to do with direction by the certificate holder or FDP fatigue mitigation. Continental and United recommended that the FAA remove administrative activity from the definition and add a provision to the regulation that applies administrative duty to specific FDPs. ATA and Delta request that if the term is kept in the definition, the FAA should clarify that the definition treats management and labor-related administrative work in the same way.
In response to the above comments, the definition of duty has been further modified by replacing “on behalf” of the certificate holder with “as required” by the certificate holder. This addresses the certificate holders' concern that the administrative work accomplished by the flightcrew member is work that he or she is required to do, and appropriately included as duty. Lastly, the FAA agrees that performance of administrative management work is not distinguishable from any other type of administrative work, and therefore administrative management work is included in the term “administrative work” under this definition.
As proposed, “duty period” means a period that begins when a certificate holder requires a flightcrew member to report for duty and ends when that crew member is free from all duties.
UPS said that defining the end of the duty period as “* * * free from all duties” is too ambiguous and uncertain since a certificate holder cannot control voluntary duties that a flightcrew member may decide to accomplish at the end of his or her FDP. UPS suggested that the definition be changed so that the end of the duty period occurs when the flightcrew member is “* * * released from all company directed duties.” In light of the changes that have been made to this rule, the FAA has determined that it is no longer necessary to define this term, and therefore the proposed definition is withdrawn.
The NPRM did not propose a definition for this term, however, APA recommended including the term, which would mean an FDP that commences in the period 0500 to 0659 home base time or where acclimated. The FAA does not agree that adopting this term is necessary or useful.
Fatigue as proposed means physiological state of reduced mental or physical performance capability resulting from lack of sleep or increased physical activity that can reduce a flightcrew member's alertness and ability to safely operate an aircraft or perform safety-related duties.
ATA commented that the proposed definition of fatigue is inconsistent with ICAO's proposed definition. ATA noted that ICAO proposes to define fatigue as “a physiological state of reduced mental or physical performance capability resulting from sleep loss or extended wakefulness, circadian phase, or workload (mental and/or physical activity) that can impair a crew member's alertness and ability to safely operate an aircraft or perform safety related duties.” ATA recommended adopting the ICAO definition because it captures the fatigue-inducing effects of the interaction of sleep loss, circadian phase, and workload, and provides a scientific basis for fatigue risk management.
In response to ATA's comments, the FAA notes that ICAO has not finalized its definition of fatigue, and the proposed definition may be subject to change. At this point, it is not prudent for the FAA to include a term that ultimately may be changed or not even adopted. Therefore, the FAA is adopting the definition of fatigue that was proposed.
As proposed, the definition of “fit for duty” means physiologically and mentally prepared and capable of performing assigned duties in flight with the highest degree of safety.
UPS commented that including “* * * duties in flight with the highest degree of safety” in the definition of “fit for duty” is not practical and too subjective. UPS further stated that it is unrealistic for any human to be at their “highest” level of performance during every possible FDP and suggests replacing “* * * highest degree of safety” with “* * * capable of performing duties that assure flight safety.”
The FAA does not agree with UPS because every flightcrew member on
The NPRM defines “flight duty period” to mean a period that begins when a flightcrew member is required to report for duty with the intention of conducting a flight, a series of flights, or positioning or ferrying flights, and ends when the aircraft is parked after the last flight and there is no intention for further aircraft movement by the same flightcrew member. A flight duty period would include deadhead transportation before a flight segment without an intervening required rest period, training conducted in an aircraft, flight simulator or flight training device, and airport/standby reserve.
ATA, UPS, World Airways, NAA, NACA, Delta, and Alaska Airlines objected to including all flight training in a flight simulator or training device in the definition of FDP. ATA, Delta, and Alaska Airlines commented that there is no scientific basis for such inclusion, and all seven commenters said there is no inherent safety basis for this decision. Alaska Airlines and Delta added that with simulator time included in the FDP, pursuant to section 117.27, flightcrew members would be unable to participate in simulator training on more than three consecutive nights. ATA further commented that there is no basis for including travel to a training site in the FDP unless the travel occurs before flight time.
ATA, Delta, and Alaska Airlines recommended that the FAA revise the proposed definition to state that only training and flight simulator time conducted before a flight without an intervening rest period is counted as part of the FDP. UPS said that it supports counting time spent in a simulator or flight training device as part of an FDP only if this time immediately precedes flight duty without an intervening rest period. UPS believed that there is an unintended consequence of treating simulator and flight training device training as part of an FDP, regardless of when the training occurs. That is, the practice of providing additional training to a flightcrew member who requests that training will be discontinued; thereby, affecting flight safety.
NACA, NAA and World Airways commented that an FDP “must involve a flight, or at a minimum, movement of an aircraft where the public is at risk where an aircraft accident potential immediately exists.” They suggested revising the proposed definition to add the following phrases: “but not limited to” and “whenever these duties are performed in conjunction with duties involving flight without an intervening rest period.” This would result in a definition that reads: “* * * A flight duty period includes, but is not limited to, deadhead transportation * * * and airport/standby reserve whenever these duties are performed in conjunction with duties involving flight without an intervening rest period.”
The FAA clarifies that an FDP begins when the flightcrew member reports for duty and will include the duties performed by the flightcrew member on behalf of the certificate holder that occur before a flight segment or between flight segments without a required intervening rest period. The FDP ends when the aircraft is parked after the last flight and there is no intention for further aircraft movement by the same flightcrew member. Included in the FDP are any of the following actions if they occur before a flight segment or between flight segments without an intervening rest period: deadhead transportation, training conducted in an aircraft or flight simulator, and airport/standby reserve. Time spent in a flight training device that takes place after the aircraft has been parked after the last flight has been eliminated from this definition. For purposes of calculating the pertinent part 121 flight, duty, and rest limits, the FAA considers time spent on an FDP to be duty.
The NPRM did not propose a definition for this term; however, APA, ALPA, CAPA, FedEx ALPA, SWAPA, and Flight Time ARC recommended adding a definition for flight time to begin when the aircraft first moves with the intention of flight. These commenters argued that this term in § 1.1 is defined as the moment the aircraft first moves under its own power. However, the pilot in command (PIC) and required flight deck flightcrew members are always responsible and must perform their duties when the aircraft is moved by a tug or sits on a hardstand and that time should count, according to the commenters, as flight time if the movement is with the intention for flight. They also state that this definition would be consistent with Annex II, Subpart Q to the Commission of the European Communities Regulation No. 3922/91, as Amended (EU OPS subpart Q) which defines flight time as the time between an airplane first moving from its parking place for the purpose of taking off until it comes to rest on the designated parking position and all engines or propellers are stopped.
IPA suggested that the proposed definition be revised as follows: “Flight time means when the aircraft first moves with the intention of flight until it comes to rest on the designated parking position.”
The FAA declines the commenters' recommendations. Numerous other regulations are based on the definition of flight time that is set out in § 1.1. Changing this term solely in the context of the flight and duty regulations would make this rule more complicated than necessary and create confusion between this rule and other regulations.
The NPRM did not propose a definition for this term; however, APA said a definition of “late finish duty” is needed to provide for fatigue mitigation caused by consecutive early starts and late finishes. APA suggested that the term be defined as an FDP that ends during the period of 0000-0159, home base time or where acclimated. The FAA does not find that it is necessary or useful to adopt this term.
The FAA did not propose definitions for either of these terms; however, NACA and NAA said that the FAA's intent for using the term “night” in the NPRM should be defined. If it is not defined, the commenters said that the FAA should always use the term “physiological night” in all text in the preamble and in the final rule. They recommended defining night to mean “the period between 0100 and 0700 at the flightcrew member's designated home base or acclimated location.” The commenters noted that this would make the term compatible with the definition of “physiological night's rest.”
Atlas said that the final rule should contain a definition of the terms “night” and “nighttime,” so as to make the meanings comparable to references in proposed § 117.27, as well as to the definition of “physiological night's rest.” It noted that while “physiological night's rest” refers to the hours of 0100 and 0700, the term “nighttime” referenced in proposed § 117.27 is interpreted to refer to operations that commence between 2200 and 0500, according to page 22 of the FAA's clarification document. Both definitions, the commenter said, differ from the definition of “night” in 14 CFR. § 1.1, which is the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the American Air Almanac, converted to local time.
The FAA declines to adopt these terms. The FAA uses the word “physiological night's rest” when it is appropriate. In addition, please refer to the FAA's response to the term “Consecutive Night Duty Period.”
The FAA did not propose a definition for this term; however, APA, ALPA, CAPA, FedEx ALPA, SWAPA, and Flight Time ARC said that to avoid confusion when conducting consecutive nighttime operations under § 117.27, the FAA should define “nighttime flight duty.” They suggested that this term be defined to mean a duty period during which any part of the duty period falls within the home base or acclimated local time period of 0200 to 0459.
IPA suggested a definition of “nighttime flight duty” as follows: “a duty period during which any part of the duty period falls within the home base or acclimated local time period of 0200 to 0459.”
Please see response to “6. Consecutive Night Duty Period.” The FAA does not find it necessary to define the term as suggested.
ATA said that the FAA should add a new definition of nighttime operations for purposes of part 117 to be consistent with the agency's document that responds to clarifying questions to the NPRM. The commenter believed that the definition should include operations that commence between 10 p.m. and 5 a.m. The FAA has clarified the pertinent provisions of section 117.27, and as such, it finds that a separate definition for nighttime operations is unnecessary.
The NPRM defined “report time” as the time that the certificate holder requires a flightcrew member to report for a duty period. The FAA did not receive any comments with regard to this definition, and as such, this rule adopts the proposed definition.
The NPRM defined “reserve availability period” to mean a duty period during which a certificate holder requires a reserve flightcrew member on short call reserve to be available to receive an assignment for a flight duty period.
NACA objected to the premise that short call reserve is duty. It noted that ARC discussions were clear that short call reserve, which is a period of time when the only responsibility the crew member has is to answer the phone, is not a fatiguing event, and thus, it should not constitute duty for cumulative-duty purposes. NACA suggested revising the proposed definition so that it reads “reserve availability period means a period of time during which a certificate holder requires a reserve flightcrew member on short call reserve to be available to receive an assignment for a flight duty period.”
As discussed in other portions of this preamble, cumulative-duty-period limits have been removed from this rule. This removal addresses the concern expressed in NACA's comment as short-call reserve is no longer subject to the cumulative-duty-period limits.
The NPRM defined “reserve duty period” as the time, applicable only to short call reserve, from the beginning of the reserve availability period to the end of an assigned flight duty period. In light of the changes that were made to the reserve status section, this definition is no longer necessary, and it has been removed from the final rule.
The NPRM defined “reserve flightcrew member” as a flightcrew member who a certificate holder requires to be available to receive an assignment for duty. The FAA did not receive any comments with regard to this definition, and as such, this rule adopts the proposed definition.
The NPRM defines “rest facility” as a bunk, seat, room or other accommodation that provides a flightcrew member with a sleep opportunity. In determining what constitutes each specific type of rest facility, the FAA took note of a comprehensive evaluation of available onboard rest facilities, which was conducted by the Dutch government in 2007. Simons M, Spencer M.,
As defined in the NPRM, “Class 1 rest facility” means a bunk or other surface that allows for a flat sleeping position and is located separate from both the flight deck and passenger cabin in an area that is temperature-controlled, allows the flightcrew member to control light, and provides isolation from noise and disturbance. “Class 2 rest facility” means a seat in an aircraft cabin that allows for a flat or near flat sleeping position; is separated from passengers by a minimum of a curtain to provide darkness and some sound mitigation; and is reasonably free from disturbance by passengers or flightcrew members. “Class 3 rest facility” means a seat in an aircraft cabin or flight deck that reclines at least 40 degrees and provides leg and foot support.
ATA stated that the proposed rule was overly restrictive with respect to the facilities it deemed sufficient for conferring credit for in-flight rest on augmented flights. ATA, NACA, and UPS criticized the proposal for over-relying on the TNO Report. ATA and UPS emphasized that the TNO Report is only a single study that has not been adopted by any regulatory body. NACA asserted that “the TNO report is more than 10 years old and was proposed by a limited number of scientists and based upon limited studies.” NACA added that “[i]n the ARC discussions, Dr. Hursh stated that his [SAFTE/FAST] models value sleep on a bunk at approximately 66 to 80 percent of normal sleep.” APA stated that the TNO Report has not been validated in the aviation context.
ATA stated that the proposed rule's adoption of the TNO report would have substantial adverse impacts on U.S. carriers because it would deviate from the less-restrictive criteria for rest facilities that the FAA set out in Advisory Circular (AC) 121-31. This is because, ATA asserted, many air carriers have invested a substantial amount of money developing rest facilities that comply with the guidelines set out in AC 121-31, and these facilities would not satisfy the more stringent criteria for rest facilities set out in the TNO Report. ATA noted that although it supports the concept of credit for in-flight rest, it does not support rest facility criteria derived from the TNO Report. It further noted that “the FAA should continue to accept AC 121-31 standards for all aircraft built prior to the imposition of the new rule, the use of current business class seats as Class 2 facilities and for credit being afforded to all-cargo aircraft that provide a `horizontal sleep opportunity' to flightcrew members. Rest facilities in use today built to AC 121-31 standards are operationally validated as a means of fatigue mitigation that FAA has accepted and there is no evidence that such facilities should not be used in the future.” To minimize costs, ATA recommended that “[a]t a minimum, the guidance in AC 121-31 should remain in effect for all aircraft built prior to the implementation date of the NPRM and
UPS added that most air-cargo carriers would be unable to install rest facilities needed for the augmentation credit because air-cargo aircraft do not have passenger cabins. UPS asserted that it would be unable to install the rest facilities required by this rule in approximately 18% of its total fleet.
The existing advisory circular that provides guidance for onboard rest facilities (AC 121-31) was written in 1994 based on the science that existed at that time. The TNO Report, on the other hand, was written in 2007, and it provides the most comprehensive evaluation available to date of onboard rest facilities. This report may not yet have been adopted by other regulatory bodies because it is only four years old, and significant regulatory changes usually take place over a longer period of time. When drafting this rule, the FAA found the TNO Report to be more persuasive than AC 121-31 because the TNO Report performed a comprehensive evaluation of rest facilities, and because it was based on more recent scientific data than AC 121-31.
The FAA understands that the TNO Report provides more conservative conclusions than the pertinent SAFTE/FAST data concerning onboard rest facilities. However, in response to comments discussed above, the FAA has increased the augmented FDP limits in Table C. This increase should more accurately reflect the results of the SAFTE/FAST modeling for augmented operations.
The FAA has considered the fact that basing the definition of rest facilities on the TNO Report may pose hardships for air carriers who currently rely on AC 121-31 for guidance about onboard rest facilities. To mitigate this hardship, as well as for a number of other considerations, the FAA has decided to make the effective date of this rule two years from publication. This two-year window will provide air carriers with time to phase out their current onboard rest facilities and install/upgrade onboard rest facilities that comply with the provisions of this rule.
APA, FedEx ALPA, SWAPA, CAPA, and Flight Time ARC said that the definition of “rest facility” should include the following clarification: “A rest facility on an aircraft shall only be used for in-flight rest opportunities.” The commenters said this statement will eliminate any temptation to have crews obtaining their part § 117.25 or part § 117.17 rest on the aircraft when it is on the ramp. Several of these commenters noted that a bunk or seat on an aircraft is not a suitable rest facility on the ground. APA further recommended that the FAA separate the definitions of an “in-flight, onboard rest facility” and a “ground-based rest facility” and clearly differentiate between a ground-based rest facility and a suitable accommodation.
The FAA agrees with the above commenters that rest in a rest facility should take place while an aircraft is in-flight. That is why the augmented FDP section, section 117.17, to which the rest-facilities definition applies, mandates that the required minimum augmentation rest take place in-flight. Because section 117.17 already requires that the minimum augmentation rest take place in-flight, there is no need to further amend the pertinent regulatory text.
Turning to APA's request for clarification concerning the distinction between onboard and ground-based rest facilities, the FAA notes that a rest facility is a facility that is installed in an aircraft. A suitable accommodation, on the other hand, is a ground-based facility. The FAA has amended the pertinent definitions to clarify this distinction between a suitable accommodation and a rest facility.
APA also stated that detailed minimum standards should be spelled out in regulatory requirements. At a minimum, the language in the Class 1 facility definition should be improved to indicate that other surfaces that allow for a flat sleeping position should be suitably padded and reasonably comfortable and suitable for sleeping. APA noted that the ARC's discussions described ground-based facilities primarily as bunkrooms and the like used by cargo carriers to provide rest during a package sort operation. APA urged the FAA to adopt the detailed recommendations regarding onboard rest facility requirements set out in the appendix included in its comment submission. APA added that it remains concerned that if such specifications are left to Advisory Circulars, and if important details are not followed, in-flight rest could be seriously compromised. Additionally, it noted that several studies have commented on sleep problems caused by low humidity or an improper temperature, but the FAA did not mention these factors nor list any requirement for them. APA suggested that a Class 1 rest facility should account for low humidity and improper temperatures.
Delta expressed concern with the following description of a Class 2 facility that, it said, is contained both in the preface and in Advisory Circular 121-31A: A Class 2 rest facility is “a seat in an aircraft cabin that allows for a flat or near flat sleeping position (around 80 degrees from the seat's vertical centerline).” Delta said that many U.S. carriers currently providing on board rest facilities on routes for which Class 2 seats would be used are using a passenger business class type seat, some of which have been slightly modified or enhanced. The commenter further noted that these types of facilities have been in use for many years mostly on flights governed by 14 CFR 121.483. According to Delta, the ARC discussed this issue and acknowledged that these existing seats have worked very well. Delta asserted that most of these seats do not recline to the 80 degree range nor is it known yet if it is feasible to modify them for this capability. Delta believed that business class type seats currently being used are more than adequate to allow for in-flight rest.
UPS and NACA said that the definition of a Class 2 rest facility fails to address rest facilities on aircraft configured without a passenger cabin (
In response to these comments, the FAA notes that, as discussed above, the specific requirements for rest facilities were derived from the TNO Report, which analyzed how much rest would be obtained from each rest facility that complied with those requirements. Because various air carriers currently utilize different types of rest facilities, the FAA has determined that adding to the TNO Report's minimum rest-facility requirements would require more air carriers to replace their existing rest facilities without a demonstrated safety benefit to justify this cost. Accordingly, the FAA declines to add additional requirements to the rest-facility requirements set out in the NPRM.
The FAA has also decided not to expand the definition of a Class 2 rest facility beyond the recommendations of the TNO Report. The FAA is open to the possibility of expanding the definition of a Class 2 rest facility if additional data is provided as part of an FRMS, and if expanding this definition would not adversely affect safety. In response
A number of industry groups and air carriers also objected to the fact that the NPRM did not consider economy-class seats to be a rest facility. These commenters stated that, in their operational experience, economy-class seats provided flightcrew members with significant amounts of restful sleep. The commenters cited a number of studies that, they claimed, indicate that an economy-class seat can provide restful sleep.
The decision to not consider an economy-class seat to be a rest facility was based on the TNO Report, which determined that “the probability of obtaining recuperative sleep in such a seat would be minimal.”
Delta stated that it is unclear why the FAA is concerned with keeping crew rest facilities out of the coach or economy section of the aircraft. Delta believes that if the seat meets the NPRM definition requirements and the specifications provided in AC 121-3A (now AC 117-1), the geographical location of the rest facility on the aircraft should be immaterial. Delta further noted that it attempted to locate a scientific or an operational basis for the exclusionary requirement and has been unable to find any; therefore, Delta believes this is an unjustified constraint and should be removed.
As discussed in the preceding response, one of the reasons why an economy-class seat does not provide restful sleep is that space around the seat is not sufficient to create an adequate separation from the passengers (economy jostling). Because there are substantially more passengers in the economy section of an aircraft, that section is generally noisier and has more densely-packed people than the other sections of the aircraft. In addition, the FAA notes that economy cabins are generally located behind the aircraft engines, and thus, have to deal with louder engine noise. Due to all of these considerations, locating a rest facility in the economy section would reduce the restfulness of the sleep obtained by a flightcrew member.
Boeing stated it has concerns about the use of the phrase “sleep opportunity” in the definition. It noted that it considers a “sleep opportunity” to be a period of time during which sleep or rest can feasibly occur. Boeing suggested that the definition be revised to read: “Rest facility means a bunk, seat, room, or other accommodation that provides a flightcrew member with comfort and quiet so as to maximize sleep and rest within a sleep opportunity period.”
Boeing's suggested definition of rest facilities has already been largely incorporated into the definitions for the Class 1 and 2 rest facilities. The FAA declines to incorporate the suggested definition for a Class 3 rest facility because there is no recommendation in the TNO Report that a Class 3 facility provide sound mitigation.
Boeing also said that it finds the new crew rest definitions to be overly prescriptive, and may drive design and configuration decisions that would run counter to the intent of the proposed rule. For example, all three classes of rest facility are defined by their location: Class 1 must be located “separate from both the flight deck and passenger cabin;” Class 2 must be in the passenger cabin; and Class 3 must be in the cabin or flight deck. Boeing notes that while these definitions may encompass most or many of the current airplane configurations, they preclude new and novel designs that might better match the intent of the rule. The commenter recommended that the FAA consider including a provision in the rule that would allow new or alternative designs to be qualified as “equivalent” to Class 1, 2, or 3, based on scientific data, such as: “Rest facilities may be qualified to a higher Class if the quantity of sleep achieved in the facility can be demonstrated to be equal to or greater than the level achieved by that Class.”
Boeing's recommendation for recognizing new rest facilities that provide a sleep opportunity that is equivalent to the rest facilities defined by this rule is addressed by the FRMS and exemption processes. If an air carrier can show that its rest facility provides the same benefits as a Class 1, 2, or 3 rest facility, the FAA may approve an FRMS or an exemption recognizing the rest facility in question as providing the same fatigue mitigation as the rest facilities regulated by this rule.
Atlas said that the proposed rule's definition of rest facility is unworkably vague and leaves a number of uncertainties, which the FAA declined to clarify in response to questions. In particular, NACA and Atlas stated that the definition of Class 1 rest facility needs to be revised, as it is impossible to provide complete “isolation from noise and disturbance” on an aircraft. Atlas said that it supports changing the definition of a Class 3 rest facility to include a common coach class seat or non-crew seat on the flight deck of an all-cargo aircraft.
The definition for a Class 1 rest facility does not require that the isolation from noise and disturbance be complete. The FAA will accept a Class 1 rest facility that minimizes noise and disturbance without eliminating it completely, as complete elimination of noise and disturbance onboard an aircraft is virtually impossible. As discussed above, the FAA has declined to accept an economy-class seat as a rest facility because the TNO Report has determined that these types of seat provide a minimal amount of restful sleep.
The NPRM defined “rest period” as a continuous period determined prospectively during which the flightcrew member is free from all restraint by the certificate holder, including freedom from present responsibility for work should the occasion arise. None of the comments raised any significant issues with regard to this definition, and as such, this rule adopts the proposed definition.
The NPRM stated that “scheduled” means times assigned by a certificate holder when a flightcrew member is required to report for duty.
UPS commented that the definition does not address reschedules that occur during an FDP but only schedules assigned when the flightcrew member
The FAA agrees with UPS that the proposed definition was ambiguous. The pertinent definition has been amended for clarification purposes.
The NPRM defines “schedule reliability” to mean the accuracy of the length of a scheduled flight duty period as compared to the actual flight duty period.
FedEx ALPA, ALPA, CAPA, SWAPA, IPA, and Flight Time ARC proposed the following revised definition for schedule reliability: “Schedule reliability means the accuracy of the length of both a scheduled flight duty period and a scheduled flight segment as compared to the actual flight duty period and segment.” SWAPA offered the following rationale for the revised definition: “To achieve schedule reliability, the individual flight segments must be considered. If a given segment within a pairing causes the pairing to exceed the limits, the certificate holder can merely leave the offending segment and change the pairing mix to bring it within limits. The segment would never be corrected. We believe that a scheduling metric must be included in § 117.9. Certificate holders now provide on-time reports to the DOT on an individual flight segment so this should not be a burdensome requirement.”
UPS said that defining schedule reliability as a comparison of an actual FDP to a scheduled FDP has no fatigue or safety implications. It recommended revising the definition as follows to match the preamble description: “Schedule reliability means the accuracy of the length of a scheduled flight duty period as compared to the maximum FDP listed in either Tables B or C (as applicable).”
As discussed in other parts of this preamble, the FAA has largely removed the proposed schedule-reliability requirements from the final rule. As such, there is no longer a need to define schedule reliability, and that definition has been removed from this rule.
The NPRM stated that “short-call reserve” means a period of time in which a flig