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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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Office of National Marine Sanctuaries (ONMS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Final rule.
NOAA is amending the regulations for the Channel Islands, Monterey Bay, Gulf of the Farallones, and Olympic Coast National Marine Sanctuaries by requiring that motorized aircraft maintain certain minimum altitudes above specified locations within the boundaries of the listed sanctuaries and stating that failure to comply with these altitude limits is presumed to disturb marine mammals and seabirds and is a violation of the sanctuary regulations.
These regulations are effective on February 27, 2012.
Office of National Marine Sanctuaries, 1305 East-West Highway, Silver Spring, MD 20910. Phone: (301) 713-3125.
This
The National Marine Sanctuaries Act (NMSA) authorizes NOAA to prohibit or otherwise regulate activities to prevent or minimize the destruction of, loss of, or injury to a resource of a national marine sanctuary (16 U.S.C. 1436(1)).
Regulations for the Monterey Bay, Channel Islands, Gulf of the Farallones and Olympic Coast National Marine Sanctuaries all restrict low altitude overflights within specified zones in each sanctuary (subject to certain exceptions) in order to protect marine mammals and seabirds from disturbance by aircraft. At Monterey Bay, Channel Islands, and Gulf of the Farallones, flights below 1000 feet are prohibited within the designated zones. At Olympic Coast, flights below 2000 feet are prohibited within one nautical mile of Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuge, or within one nautical mile seaward from the coastal boundary of the sanctuary.
These regulations vary slightly with each sanctuary. The regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit overflights below a certain level within designated zones—1000 feet in Monterey Bay and 2000 feet in Olympic Coast, as noted above—without requiring a specific showing that marine mammals or seabirds have been disturbed. The regulations for the Channel Islands and the Gulf of the Farallones prohibit disturbing marine mammals or seabirds by flying below 1000 feet within specified zones of the sanctuaries.
With this final rule, NOAA has standardized these regulations by adopting a single, consistent and clear regulatory approach regarding overflights in these sanctuaries. The regulations for each sanctuary now establish a rebuttable presumption that flying motorized aircraft below the existing minimum altitudes within any of the existing zones results in the disturbance of marine mammals or seabirds. This means that if a pilot were observed flying below the established altitude within a designated zone, it would be presumed that marine mammals or seabirds had been disturbed and that a violation of sanctuary regulations had been committed. This presumption of disturbance could be overcome by contrary evidence that disturbance did not, in fact, occur (
Low overflights in these sites clearly pose a risk of harmful disturbance to marine mammals and seabirds, including movement and evacuation in response to low overflights where the young (pups, chicks, eggs) are crushed during an evacuation or exposed to predation as a consequence of loss of parental protection. Indeed, given the connection between low overflights and disturbance, the Southwest Region of the National Marine Fisheries Service developed marine mammal viewing guidelines for its region (which includes the three California sanctuaries), recommending that aircraft avoid flying below 1000 feet over marine mammals. Similarly, the State of California prohibits overflights less than 1000 feet above designated wildlife habitat areas within the state waters of each sanctuary off of California. In the Olympic Coast National Marine Sanctuary, offshore islands of the Flattery Rocks, Quillayute Needles, and Copalis National Wildlife Refuges have high pinnacles that provide important habitats for 14 species of seabirds, warranting the prohibition on flights below 2000 feet in this sanctuary to better protect these sanctuary resources. This prohibition is further consistent with an advisory published by the Federal Aviation Administration (FAA) that applies to these same areas (FAA Advisory Circular AC 91-36D).
The existing NOAA overflight regulations are not indicated on current FAA aeronautical charts. The FAA has advised NOAA that with the promulgation of this final rule, it will revise the notation on current aeronautical charts to indicate the sanctuaries' overflight regulations. The notation on FAA aeronautical charts in no way imposes additional FAA obligations on aircraft operators. Rather,
NOAA is amending ONMS regulations (15 CFR part 922) for these four sanctuaries. The amendments harmonize NOAA's long-standing regulatory provisions prohibiting low overflights over certain areas within these sanctuaries and more clearly connect the adverse impacts upon marine mammals or seabirds caused by low overflights as the regulatory basis for NOAA's overflight regulations.
The comments received on the proposed rule that was published on December 7, 2010 (75 FR 76319) are summarized below, together with responses from NOAA. There were 169 submissions from individuals, organizations, state representatives, state agencies, and Federal agencies. Because many of the submissions contained the same or similar comments, those comments have been grouped together by subject and responded to as one comment.
1.
2.
3.
4.
5.
6.
7.
Additional documentation supporting the need for overflight regulations in order to reduce the risk of harmful disturbance to marine mammals and seabirds was submitted during the public comment period and can be found at
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
NOAA has made two changes to this final rule as compared to the proposed rule. NOAA corrected the Channel Islands National Marine Sanctuary regulatory citation from § 922.72 paragraph (a)(5) to § 922.72 paragraph (a)(7) and the Olympic Coast National Marine Sanctuary regulatory citation from § 922.152 paragraph (a)(6) to § 922.152 paragraph (a)(7).
The amendments to the sanctuary regulations in the four national marine sanctuaries identified in this notice do not have significant environmental impacts and are categorically excluded from the need to prepare an environmental assessment pursuant to the National Environmental Policy Act. Specifically, the proposed amendments to the regulations are legal in nature, establishing a rebuttable presumption regarding disturbance below a certain level and are thus categorically excluded by NOAA Administrative Order 216-6 Section 6.03c.3(i).
This proposed rule has been determined to be not significant within the meaning of Executive Order 12866.
NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.
This rule does not contain any new or revisions to the existing information collection requirement that was approved by OMB (OMB Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this rule. As a result, a final regulatory flexibility analysis was not prepared.
Administrative practice and procedure, Environmental protection, Fish, Harbors, Marine pollution, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Research, Water pollution control, Water resources, Wildlife, Overflights.
Accordingly, for the reasons set forth above, 15 CFR part 922 is amended as follows:
15 U.S.C. 1431
(a) * * *
(7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of any Island, except to engage in kelp bed surveys or to transport persons or supplies to or from an Island. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.
(a) * * *
(8) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of the Farallon Islands, Bolinas Lagoon, or any ASBS, except to transport persons or supplies to or from the Islands or for enforcement purposes. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.
(a) * * *
(6) Disturbing marine mammals or seabirds by flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart. Failure to maintain a minimum altitude of 1,000 feet above ground level above any such zone is presumed to disturb marine mammals or seabirds.
(a) * * *
(7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 2,000 feet over the waters within one nautical mile of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuges or within one nautical mile seaward from the coastal boundary of the Sanctuary, except for activities related to tribal timber operations conducted on reservation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian tribe. Failure to maintain a minimum altitude of 2,000 feet above ground level over any such waters is presumed to disturb marine mammals or seabirds.
United States International Trade Commission.
Interim rule with request for comments.
The United States International Trade Commission (Commission) is adopting interim rules that amend the Commission's Rules of Practice and Procedure to make technical amendments and to provide rules for the conduct of safeguard investigations under statutory provisions that implement bilateral safeguard provisions in free trade agreements that the United States has negotiated with Australia, Bahrain, Chile, Colombia, the Dominican Republic and five Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua), Jordan, Korea, Morocco, Oman, Panama, Peru, and Singapore. With the exception of the free trade agreements with Colombia, Korea, and Panama, all of the aforementioned free trade agreements have entered into force. The free trade
You may submit comments, identified by docket number MISC-039, FTA safeguards rulemaking, by any of the following methods:
James R. Holbein, Secretary, telephone (202) 205-2000 or William Gearhart, Esquire, Office of the General Counsel, United States International Trade Commission, telephone (202) 205-3091. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at (202) 205-1810. General information concerning the Commission may also be obtained by accessing its Web site at
The preamble below is designed to assist readers in understanding these amendments to the Commission Rules. This preamble provides background information, a regulatory analysis of the amendments, a section-by-section explanation of the amendments, and a description of the amendments to the Rules. The Commission encourages members of the public to comment, in addition to any other comments they wish to make on the amendments, on whether the amendments are in language that is sufficiently clear for users to understand.
These amendments are being promulgated in accordance with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified in 19 CFR part 206.
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules and regulations as it deems necessary to carry out its functions and duties. The Commission is amending its rules governing investigations relating to global and bilateral safeguard actions, market disruption, trade diversion and review of relief actions (Part 206 of its Rules). The amendments principally concern Subpart D of Part 206, Investigations Relating to Bilateral Safeguard Actions, but also include several technical and conforming changes to the general rules in Subpart A of Part 206. The current rules in Subpart D apply only to Commission investigations under the bilateral safeguard provision in the NAFTA Implementation Act with respect to imports from Canada and Mexico. However, in recent years Congress has enacted legislation that implements bilateral safeguard provisions in several additional free trade agreements, including most recently agreements with Colombia, Korea, and Panama. The implementing legislation for each of those free trade agreements directs the Commission, upon receipt of a petition, to conduct an investigation and determine whether, as a result of the reduction or elimination of a duty under the agreement, an article is being imported into the United States in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that imports of such article constitute a substantial cause of serious injury or the threat thereof to the domestic industry producing an article that is like or directly competitive with the imported article. If the Commission makes an affirmative determination, it must recommend a remedy to the President; the President makes the final decision on remedy.
In addition to the NAFTA Implementation Act, the Commission is required to conduct bilateral safeguard investigations and make determinations under section 311(b) of the United States-Australia Free Trade Agreement Implementation Act, section 311(b) of the United States-Bahrain Free Trade Agreement Implementation Act, section 311(b) of the United States-Chile Free Trade Agreement Implementation Act, section 311(b) of the United States-Colombia Trade Promotion Agreement Implementation Act, section 311(b) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, section 211(b) of the United States-Jordan Free Trade Area Implementation Act, section 311(b) of the United States-Korea Free Trade Agreement Implementation Act, section 311(b) of the United States-Morocco Free Trade Agreement Implementation Act, section 311(b) of the United States-Oman Free Trade Agreement Implementation Act, section 311(b) of the United States-Panama Trade Promotion Agreement Implementation Act, section 311(b) of the United States-Peru Trade Promotion Agreement Implementation Act, and section 311(b) of the United States-Singapore Free Trade Agreement Implementation Act (for U.S. Code citations to the respective implementation acts, see the text of interim rule section 206.31
These amendments expand upon existing rules in Subpart D of Part 206 that provide for investigations and determinations under the NAFTA Implementation Act. Each of the statutory provisions listed above contains requirements that are similar both substantively and procedurally to the provision in the NAFTA Implementation Act. These amended rules identify the types of entities that may file a petition, describe the information that must be included in a petition, indicate the time for Commission determinations and reporting, and establish procedures for the limited disclosure of confidential business information under administrative protective order in those instances in which the Commission is authorized to make such disclosure.
The Commission ordinarily promulgates amendments to the Code of Federal Regulations in accordance with the rulemaking procedure in section 553 of the Administrative Procedure Act
The Commission's authority to adopt interim amendments without following all steps listed in section 553 of the APA is derived from section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) and section 553 of the APA.
Section 335 of the Tariff Act authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. The Commission has determined that the need for interim rules is clear in this instance. Recently enacted legislation that implements safeguard provisions in free trade agreements, including agreements with Colombia, Korea, and Panama, requires the Commission to conduct new kinds of investigations and make determinations. It is important that the Commission adopt implementing rules as quickly as possible because the three new agreements are expected to enter into force imminently. The interim amendments will also apply in the case of investigations under legislation that implements safeguard provisions in free trade agreements that have already entered into force with respect to the other countries listed above. In light of the similarity of the provisions in the various implementing statutes, the Commission did not view it as practical to issue a notice of interim rulemaking applicable to investigations involving goods from one or several free trade agreement partners and at the same time issue a substantially identical notice of proposed rulemaking applicable to investigations involving goods from other free trade agreement partners. These interim rules will apply to investigations and determinations under a particular free trade agreement implementation act only after the relevant agreement has entered into force.
Section 553(b) of the APA allows an agency to dispense with publication of a notice of proposed rulemaking when the following circumstances exist: (1) The rules in question are interpretive rules, general statements of policy, or rules of agency organization, procedure or practice; or (2) the agency for good cause finds that notice and public comment on the rules are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates that finding and the reasons therefor into the rules adopted by the agency.
Section 553(d)(3) of the APA allows an agency to dispense with the publication of notice of final rules at least thirty days prior to their effective date if the agency finds that good cause exists for not meeting the advance publication requirement and the agency publishes that finding along with the rules.
In this instance, the Commission has determined that the requisite circumstances exist for dispensing with the notice, comment, and advance publication procedure that ordinarily precedes the adoption of Commission rules. For purposes of invoking the section 553(b) exemption from publishing a notice of proposed rulemaking that solicits public comment, the Commission finds that the interim amendments to Part 206 are “agency rules of procedure and practice.” Moreover, the entry into force of the new agreements, particularly the agreement with Korea, which applies to a significant amount of U.S. import trade and which could not be predicted sufficiently far in advance, makes the establishment of rules a matter of urgency. Hence, it clearly would have been impracticable for the Commission to comply with the notice of proposed rulemaking and public comment procedure.
For the purpose of invoking the section 553(d)(3) exemption from publishing advance notice of the interim amendments to Part 206 at least thirty days prior to their effective date, the Commission finds the fact that the implementing legislation was signed by the President on October 21, 2011, makes such advance publication impracticable and constitutes good cause for not complying with that requirement.
The Commission recognizes that interim rule amendments should not respond to anything more than the exigencies created by the new legislation. Each interim amendment to Part 206 accordingly falls into one or more of the following categories: (1) A revision of a preexisting rule to make it applicable to one or more of the new kinds of investigations of relief actions; (2) clarification of the manner in which a preexisting rule is to be applied to one or more of the new kinds of investigations; or (3) a new rule covering a matter addressed in the new legislation but not covered by a preexisting rule.
After taking into account all comments received and the experience acquired under the interim amendments, the Commission will replace them with final amendments promulgated in accordance with the notice, comment, and advance publication procedure prescribed in section 553 of the APA.
The Commission has determined that the proposed rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
These interim rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, August 4, 1999).
No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
The interim rules are not major rules as defined by section 804 of the Congressional Review Act (5 U.S.C. 801
The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501
Section 206.1 of subpart 206, which lists the statutory authorities and investigations to which subpart 206
Subpart A of Part 206 sets forth rules of general application for Commission safeguard investigations. This subpart is being amended in two principal respects. Section 206.2 is amended to extend to entities filing petitions under bilateral safeguard provisions the requirement that the petitioning entity identify the statutory authority and rule subpart under which the petition is filed. Section 206.6(a)(2) is amended to state that the Commission, if it makes an affirmative determination or is equally divided in its determination, will include in its report such remedy recommendations or proposals as may be appropriate under the statute and an explanation of the basis for each recommendation or proposal. The amendment deletes a reference to a statutory provision that applies only in certain market disruption investigations.
Subpart D of Part 206 is amended to apply to Commission investigations under several statutory authorities that implement FTA safeguard provisions. As amended, Subpart D is divided into seven sections. Section 206.31 lists the statutory authorities under which the Commission conducts such investigations. Section 206.32 sets forth definitions for terms applicable to some or all such investigations, including “substantial cause,” “domestic industry,” “critical circumstances,” “perishable agricultural product,” and “Korean motor vehicle article.” The definitions of “substantial cause,” “domestic industry,” and “Korean motor vehicle article” are not in the current rule; however, they reflect statutory definitions.
Section 206.33(a) lists the types of entities that may file a petition. The list is the same as in the current rule, but the rule is revised to refer to the list of statutory authorities in section 206.31. Current section 206.33(b) is redesignated as section 206.33(d) and is amended to list the countries whose goods might be the subject of a request for provisional relief with respect to a perishable agricultural product. New section 206.33(b) lists the agreements for which U.S. implementing legislation has been enacted that provides for the subject Commission investigations. Current section 206.33(c) is deleted and is replaced by a new section 206.33(c) that relates to allegations of critical circumstances and lists the FTA countries whose goods might be the subject of a request for provisional relief when critical circumstances are alleged. The Commission is deleting current section 206.33(c), which describes the President's authority to provide relief after expiration of the transition period in NAFTA cases, because it finds it impractical and unnecessary to describe more generally the President's authority under the various free trade agreement implementing statutes.
Section 206.34 describes the information that must be included in a petition filed under Subpart D. The information required is similar to that in current section 206.34 for petitions filed under the NAFTA safeguard provisions. Like the current rule, the amended rule recognizes that not all of the requested information may be available to the entity seeking to file a petition. Accordingly, the amended rule directs that the entity provide the requested information to the extent that such information is publicly available from governmental or other sources, or best estimates and the basis therefor if such information is not available.
Section 206.35 sets forth the time period that the Commission has to make its injury determination and transmit its report after an investigation is initiated, and also indicates the time period for making and reporting determinations when provisional relief is requested. These time periods are the same as in the implementing statutes.
Section 206.36, which states that the Commission will make its reports available to the public (with the exception of confidential business information) and will publish a summary in the
New section 206.37 is added to provide for limited disclosure of certain confidential business information under administrative protective order in investigations under implementing statutes that authorize such disclosure. With the exception of the implementing statutes for the NAFTA and the Jordan FTA, each of the implementing statutes listed in section 206.31 provides for such disclosure.
Administrative practice and procedure, Australia, Bahrain, Business and industry, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Imports, Investigations, Jordan, Korea, Mexico, Morocco, Nicaragua, Oman, Panama, Peru, Singapore, Trade agreements.
For the reasons stated in the preamble, the United States International Trade Commission amends 19 CFR Part 206 as follows:
19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 2451-2451a, 3351-3382, 3805 note, 4051-4065, and 4101.
Part 206 applies to proceedings of the Commission under 201-202, 204, 406, and 421-422 of the Trade Act of 1974, as amended (2251-2252, 2254, 2436, 2451-2451a), sections 301-317 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3351-3382) (hereinafter NAFTA Implementation Act), and the statutory provisions listed in section 206.31 of this part 206 that implement bilateral safeguard provisions in other free trade agreements into which the United States has entered.
An investigation under this part 206 may be commenced on the basis of a petition, request, resolution, or motion as provided for in the statutory provisions listed in §§ 206.1 and 206.31. Each petition or request, as the case may be, filed by an entity representative of a domestic industry under this part 206 shall state clearly on the first page thereof “This is a [petition or request] under section [citing the statutory provision] and Subpart [B, C, D, E, F, or G] of part 206 of the rules of practice and procedure of the United States International Trade Commission.”
(a) * * *
(2) If the determination is affirmative or if the Commission is equally divided in its determination, such remedy recommendation or proposal as may be appropriate under the statute and an
This subpart D applies specifically to investigations under section 311(b) of the United States-Australia Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Bahrain Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Chile Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Colombia Trade Promotion Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (19 U.S.C. 4061(b)), section 211(b) of the United States-Jordan Free Trade Area Implementation Act (19 U.S.C. 2112 note), section 311(b) of the United States-Korea Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Morocco Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 302(b) of the NAFTA Implementation Act (19 U.S.C. 3352(b)), section 311(b) of the United States-Oman Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Panama Trade Promotion Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Peru Trade Promotion Agreement Implementation Act (19 U.S.C. 3805 note), and section 311(b) of the United States-Singapore Free Trade Agreement Implementation Act (19 U.S.C. 3805 note). For other applicable rules, see subpart A of this part and part 201 of this chapter.
For the purposes of this subpart, the following terms have the meanings hereby assigned to them:
(a) The term
(b) The terms
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
A petition under this subpart D shall include specific information in support of the claim that, as a result of the reduction or elimination of a duty provided for under a free trade agreement listed in § 206.33(b), an article is being imported into the United States in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that imports of the article constitute a substantial cause of serious injury, or (except in the case of a Canadian article) threat thereof, to the domestic industry producing an article that is like or directly competitive with the imported article. If provisional relief is requested in a petition concerning an article from Australia, Canada, Jordan, Korea, Mexico, Morocco, or Singapore, the petition shall state whether provisional relief is sought because
(a)
(b)
(1) The names and addresses of the firms represented in the petition and/or the firms employing or previously
(2) The percentage of domestic production of the like or directly competitive domestic article that such represented firms and/or workers account for and the basis for claiming that such firms and/or workers are representative of an industry; and
(3) The names and locations of all other producers of the domestic article known to the petitioner;
(c)
(d)
(e)
(1) With respect to serious injury, data indicating:
(i) A significant idling of production facilities in the industry, including data indicating plant closings or the underutilization of production capacity;
(ii) The inability of a significant number of firms to carry out domestic production operations at a reasonable level of profit; and
(iii) Significant unemployment or underemployment within the industry; and/or
(2) With respect to the threat of serious injury, data relating to:
(i) A decline in sales or market share, a higher and growing inventory (whether maintained by domestic producers, importers, wholesalers, or retailers), and a downward trend in production, profits, wages, productivity, or employment (or increasing underemployment);
(ii) The extent to which firms in the industry are unable to generate adequate capital to finance the modernization of their domestic plants and equipment, or are unable to maintain existing levels of expenditures for research and development;
(iii) The extent to which the U.S. market is the focal point for the diversion of exports of the article concerned by reason of restraints on exports of such article to, or on imports of such article into, third country markets; and
(3) Changes in the level of prices, production, and productivity.
(f)
(g)
(h)
(i)
(a)
(b)
(c)
Except in the case of an investigation under the United States-Jordan Free Trade Area Implementation Act or the NAFTA, the Secretary shall make available to authorized applicants, in accordance with the provisions of § 206.17, confidential business information obtained in an investigation under this subpart.
By order of the Commission.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Novartis Animal Health U.S., Inc. The supplemental NADA provides for veterinary prescription use of deracoxib tablets in dogs for the control of postoperative pain and inflammation associated with dental surgery and the addition of a 12-milligram (mg) size tablet.
This rule is effective January 26, 2012.
Amy L. Omer, Center for Veterinary Medicine (HFV-114), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8336, email:
Novartis Animal Health U.S., Inc., 3200 Northline Ave., Suite 300, Greensboro, NC 27408, filed a supplement to NADA 141-203 that provides for veterinary prescription use of DERAMAXX (deracoxib) Chewable Tablets in dogs for the control of postoperative pain and inflammation associated with dental surgery and the addition of a 12-mg size tablet. The supplemental NADA is
A summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this supplemental approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.
The Agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:
21 U.S.C. 360b.
(a)
(d) * * *
(1)
(i) 1 to 2 mg/kilogram (kg) (0.45 to 0.91 mg/pound (lb)), for use as in paragraph (d)(2)(i) of this section.
(ii) 1 to 2 mg/kg (0.45 to 0.91 mg/lb) for 3 days, for use as in paragraph (d)(2)(ii) of this section.
(iii) 3 to 4 mg/kg (1.4 to 1.8 mg/lb) for up to 7 days, for use as in paragraph (d)(2)(iii) of this section.
(2)
(ii) For the control of postoperative pain and inflammation associated with dental surgery.
(iii) For the control of postoperative pain and inflammation associated with orthopedic surgery.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. The SIP revision adds a new chapter (9VAC5-45—Consumer and Commercial Products) in order to control volatile organic compounds (VOC) from portable fuel containers, consumer products, architectural and industrial (AIM) coatings, adhesives and sealants, and asphalt paving operations within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The SIP revision also includes new and revised documents incorporated by reference into the Virginia regulations (9VAC5-20-21—Documents Incorporated by Reference) in order to support the new and revised regulations. This action is being taken under the Clean Air Act (CAA).
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2011-0730. All documents in the docket are listed in the
Gregory Becoat, (215) 814-2036, or by email at
On November 8, 2011 (76 FR 69214), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of Virginia's consumer and commercial products regulations. The formal SIP revision was submitted by the Commonwealth of Virginia on March 18, 2010.
The SIP revision consists of the following: (1) Amendments to Chapter 9VAC5-20-21—Documents Incorporated by Reference, in order to make administrative changes for clarity, style, format, renumbering, and incorporate by reference into the Virginia regulations the new and revised regulations; (2) adds a new chapter, 9VAC5-45—Consumer and Commercial Products (Chapter 45) for regulations pertaining to consumer and commercial products; (3) adds special provisions in Chapter 45 that specify monitoring, compliance, notification, general testing, recordkeeping and reporting requirements; (4) establishes standards for portable fuel containers for products manufactured before and after August 1, 2010; (5) establishes standards for consumer products for products manufactured before and after August 1, 2010; (6) establishes standards for architectural and industrial maintenance coatings; (7) establishes standards for adhesives and sealants; and (8) establishes standards for asphalt paving operations. These SIP revisions contain the required elements for a federally enforceable rule: emission limitations, compliance procedures and test methods, compliance dates and record keeping provisions. The Commonwealth of Virginia has adopted the standards and requirements of the consumer and commercial products regulations as recommended by the Ozone Transport Commission model
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the consumer and commercial products regulations as a revision to the Virginia SIP. This SIP revision will control emissions of VOCs, which will reduce the formation of ozone, and thereby protect public health and welfare.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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 in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this 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.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 26, 2012. 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 pertaining to Virginia's consumer and commercial products regulations, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is approving submittals from the State of Oklahoma pursuant to the Clean Air Act (CAA or the Act) that address the infrastructure elements specified in the CAA, necessary to implement, maintain, and enforce the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter (PM
This final rule is effective on February 27, 2012.
EPA has established a docket for this action under Docket Identification No. EPA-R06-OAR-2008-0637. All documents in the docket are listed at
The state submittal is also available for public inspection during official business hours, by appointment, at the Oklahoma Department of Environmental Quality, 707 North Robinson, P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677.
Terry Johnson, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-2154; fax number (214) 665-7263; email address:
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for today's action is discussed in detail in our November 16, 2011, proposal (76 FR 70940). In that
Our November 16, 2011, proposal provides a detailed description of the submittals and the rationale for EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for these actions closed on December 16, 2011, and we did not receive any comments.
We are approving the December 5, 2007, and June 24, 2010, submittals provided by the State of Oklahoma as they demonstrate that the Oklahoma SIP meets the requirements of section 110(a)(1) and (2) of the Act for the 1997 ozone and 1997 PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air 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 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.
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 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) adopts a rule that affects the process of tower construction by instituting a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission. As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, the Commission also requires that an EA be prepared for any proposed tower over 450 feet in height.
The rules in this document contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the
Mania Baghdadi, Wireless Telecommunications Bureau, (202) 418-2133, email
This is a summary of the Commission's Order on Remand in WT Docket Nos. 08-61 and 03-187, adopted December 6, 2011, and released December 9, 2011. The full text of the Order on Remand is available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,
1. In this Order, the Commission takes procedural measures to ensure, consistent with its obligations under Federal environmental statutes, that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction. The Commission institutes a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission. As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, the Commission also requires that an Environmental Assessment (EA) be prepared for any proposed tower over 450 feet in height. Through these actions and the Commission's related ongoing initiatives, the Commission endeavors to minimize the impact of communications towers on migratory birds while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public.
2. The Commission's actions in this Order respond to the decision of the Court of Appeals for the District of Columbia Circuit in
3. The Commission's action also occurs in the context of its ongoing rulemaking proceeding addressing the effects of communications towers on migratory birds. In 2006, the Commission sought comment on what
4. Specifically, the Commission takes the following actions in this Order:
• The Commission requires that prior to the filing of an ASR application for a new antenna structure, members of the public be given an opportunity to comment on the environmental effects of the proposal. The applicant will provide notice of the proposal to the local community and the Commission will post information about the proposal on its Web site. Commission staff will consider any comments received from the public to determine whether an EA is required for the tower.
• Environmental notice will also be required if an ASR applicant changes the lighting of existing tower to a less preferred lighting style.
• The Commission modifies its procedures so that EAs for those registered towers that require EAs will also be filed and considered prior to the ASR application. Those EAs are currently filed together with either the ASR application or a service-specific license or permit application.
• The Commission institutes an interim procedural requirement that an EA be filed for all proposed registered towers over 450 feet in height. Staff will review the EA to determine whether the tower will have a significant environmental impact. This processing requirement is an interim measure pending completion of the ongoing programmatic environmental analysis of the ASR program.
5. Also pending before the Commission are two Petitions for Expedited Rulemaking: one filed May 2, 2008, by CTIA—The Wireless Association, National Association of Broadcasters, National Association of Tower Erectors, and PCIA—The Wireless Association; and another filed April 24, 2009, by American Bird Conservancy, Defenders of Wildlife and National Audubon Society. In light of the Commission's adoption of an environmental notification process that provides a meaningful opportunity for the public to raise environmental concerns as to prospective ASR applications, together with the commencement of the programmatic EA, the Commission grants in part and dismisses in part these petitions for expedited rulemaking. To the extent that this Order adopts a notification process for prospective ASR applications and otherwise responds to concerns raised by the court, the Petitions are granted in part. Insofar as the Petitions seek relief beyond the scope of this Remand Order, they are dismissed without prejudice. Either Petition may be refiled to seek relief on any issues that may remain relevant following completion of the programmatic NEPA analysis.
6. NEPA requires all Federal agencies, including the FCC, to identify and take into account environmental effects when deciding whether to authorize or undertake a major Federal action. Although NEPA does not impose substantive requirements upon agency decision-making, Title I requires Federal agencies to take a “hard look” at proposed major Federal actions that may have significant environmental consequences and to disseminate relevant information to the public.
7. Section 204 of NEPA, 42 U.S.C. 4344, created the Council on Environmental Quality (CEQ) and entrusted it with oversight responsibility regarding the NEPA activities of Federal agencies. To implement Section 102(2) of NEPA, CEQ promulgated regulations, 40 CFR parts 1500-1508, that “tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act.” 40 CFR 1500.1(a). These regulations are “applicable to and binding on all Federal agencies for implementing the procedural provisions of [NEPA] * * * except where compliance would be inconsistent with other statutory requirements.” 40 CFR 1500.3. Thus, as mandated by NEPA, each Federal agency issues its own regulations and procedures that implement its NEPA responsibility to identify and account for the environmental impacts of projects it undertakes or authorizes. 42 U.S.C. 4332(2)(B). Such regulations must follow the requirements specified in CEQ regulations. 40 CFR 1507.1, 1507.3.
8. CEQ's regulations direct agencies to identify their major Federal actions as falling into one of three categories. 40 CFR 1507.3(b)(2). The first such category encompasses those actions that normally have a significant environmental impact. These actions always require an EIS. 42 U.S.C. 4332(2)(C).
9. The third category of actions—“categorical exclusions”—are those actions agencies have identified “which do not individually or cumulatively have a significant effect on the human environment * * * and for which * * * neither an environmental assessment nor an environmental impact statement is required.”
10. One of NEPA's central goals is to facilitate public involvement in agency decisions that may affect the environment. 40 CFR 1500.1(b), 1500.2(d). Section 1506.6 of CEQ's regulations governs public involvement in federal agencies' implementation of NEPA. 40 CFR 1506.6. Section 1506.6(a) provides generally that agencies shall “make diligent efforts to involve the public in preparing and implementing their NEPA procedures.” Section 1506.6(b) specifically directs agencies to provide “public notice of * * * the availability of environmental documents” to parties who may be interested in or affected by a proposed action. Environmental documents include EAs, EISs, FONSIs, and Notices of Intent (NOIs). 40 CFR 1508.10. For actions “with effects primarily of local concern,” Section 1506.6(b)(3) suggests nine ways of providing local public notice, while Section 1506.6(b)(2) discusses methods of providing notice for actions “with effects of national concern.” In a memorandum to agencies, the CEQ has explained that “[a] combination of methods may be used to give notice, and the methods used should be tailored to the needs of particular cases.”
11.
12. Sections 1.1307(a) and (b) of the Commission's existing rules identify those types of communications facilities that may significantly affect the environment and for which applicants must always prepare an EA that must be evaluated by the Commission as part of its decision-making process. Thus, Commission licensees and applicants must currently ascertain, prior to construction or application for Commission authorization or approval, whether their proposed facilities may have any of the specific environmental effects identified in these rules. 47 CFR 1.1308. The rules currently do not identify facilities that may affect migratory birds as requiring preparation of an EA. The Commission notes, however, that licensees and applicants must consider effects on migratory birds that are listed or proposed as endangered or threatened species under the ESA.
13. Under the existing rules, actions not within the categories for which EAs are required under Sections 1.1307(a) and (b) of the Commission's rules “are deemed individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing * * * [e]xcept as provided in Sections 1.1307(c) and (d).” 47 CFR 1.1306(a). Thus, most antenna structure registrations are categorically excluded from environmental processing. Under Sections 1.1307(c) and (d), the agency shall require an EA if it determines that an otherwise categorically excluded action may have a significant environmental impact. These provisions satisfy Section 1508.4 of CEQ's rules, 40 CFR 1508.4, requiring that “[a]ny [categorical exclusion] provisions shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” Thus, even though a potentially significant effect on migratory birds is not one of the categories of proposed actions identified in Section 1.1307(a) of the rules as requiring an EA, the Commission has on several occasions considered the impact of particular proposed construction projects on migratory birds and, in appropriate circumstances, has required modifications to protect them.
14.
15. To register an antenna structure, the antenna structure owner must submit to the Commission a valid ASR application (FCC Form 854, Application for Antenna Registration), along with the No Hazard Determination from the FAA. Because the processing of ASR applications is a major Federal action, the tower owner must certify in response to current Question 38 on Form 854 (the number may change on the revised form) whether the proposed antenna structure may have a significant environmental effect, as defined by Sections 1.1307(a) and (b) of the rules, for which an EA must be prepared. The Commission will not process an ASR application if Question 38 is not answered. A “no” answer signifies that none of the circumstances delineated in Sections 1.1307(a) and (b) of the Commission's rules apply to the proposed tower and that an EA is not required to be submitted with the application. In that event, the ASR system verifies against the FAA's database the accuracy of the lighting and marking specifications provided by the applicant. The ASR system then issues an antenna structure registration (Form 854R) without the Commission
16. If the response to Question 38 is “yes,” the applicant must submit an EA, along with supporting documentation, when it files the ASR application with the Commission. This means that the application will not be processed until the Bureau has resolved the environmental concerns addressed in the EA. 47 CFR 17.4(c). Such an application is placed on public notice for thirty (30) days, by publication of a notice in the Daily Digest. This process affords interested persons an opportunity to comment on the EA and also, pursuant to Section 1.1307(c), to seek environmental review with respect to effects, such as impact on migratory birds, that do not routinely require preparation of an environmental assessment.
17. Under the Commission's rules, applicants for some proposed towers may be required not only to file an ASR application but also to file service-specific applications. For example, applicants for certain public safety and wireless radio service facility authorizations may be required to file both an ASR application and a site-by-site license application. The license application (Form 601, Application for Wireless Telecommunications Bureau Radio Service Authorization) may be placed on public notice pursuant to the Commission's licensing rules. To date, those applicants have been permitted to choose whether to attach any required EA to FCC Form 854 or FCC Form 601. Broadcast construction applicants are, on the other hand, required to submit the EA, if any is required, with the service-specific application and do not submit a copy of the EA with the associated FCC Form 854. Similarly, while pre-construction approval is generally not required for satellite earth stations, if an EA is required, the applicant must submit a service-specific application on FCC Form 312 (Application for Satellite Space and Earth Station Authorizations) and attach the EA to that application, which is then placed on 30-day public notice, prior to construction. 47 CFR 25.115, 25.151.
18.
19.
20.
21.
22.
23. First, the court rejected the Commission's dismissal of petitioners' request for an EIS. The court held that neither the lack of specific evidence concerning the impact of towers on the environment, nor the lack of consensus among scientists regarding the impact of communications towers on migratory birds, was sufficient to render a NEPA analysis unnecessary. Rather, because the court found there is no real dispute that towers
24. Second, the court vacated the Commission's refusal to engage in programmatic consultation with FWS under the ESA. The court remanded the issue, holding that the Commission had failed to describe what kind of showing, short of petitioners conducting an EIS themselves, could demonstrate sufficient environmental effects to
25. Third, the court ordered the Commission on remand to determine how it will provide notice of pending tower registration applications that will ensure meaningful public involvement in implementing NEPA procedures. The court noted that while the Commission's rules permit interested persons to seek environmental review of a particular action otherwise categorically excluded from environmental processing, its process confers “a hollow opportunity to participate in NEPA procedures” because “the Commission provides public notice of individual tower applications only
26. Meanwhile, the Commission had a related proceeding ongoing—the Migratory Birds rulemaking. On August 20, 2003, the Commission had issued the
27. After reviewing the comments and the Avatar Report, the Commission in 2006 issued the
28. The Commission received more than 2400 comments and reply comments in response to the
29.
30. Ten parties filed comments on the Infrastructure Coalition Petition. Comments from communications providers and tower companies generally support the Infrastructure Coalition Petition, with some differences as to certain details. These commenters assert that the Infrastructure Coalition's proposed rules reasonably balance the goals of rapid deployment of wireless infrastructure and public involvement, in compliance with the court's decision. Commenters representing environmental protection groups, however, reject the rules and procedures proposed by the Infrastructure Coalition as not ensuring meaningful public involvement, and they ask for the cessation of registration of all antenna structures until the Commission complies with NEPA.
31. On April 14, 2009, American Bird Conservancy, Defenders of Wildlife, and National Audubon Society (Conservation Groups) filed the Conservation Groups Petition. The Conservation Groups Petition asks the Commission to adopt new rules on an expedited basis to comply with NEPA, the MBTA, and the court's mandate in
32. The Commission received 19 comments and four replies in response to the Conservation Groups Petition. Those conservations organizations that filed comments generally support the Conservation Groups Petition. Opponents of the Conservation Groups Petition argue that communications towers do not have a significant environmental impact on migratory birds, and they challenge the validity of the estimates and evidence submitted in the Conservation Groups Petition. On reply, the Conservation Groups cite additional studies that they state establish a link between bird deaths and towers.
33.
34. In
35. The programmatic EA will provide the basis for the agency to determine whether an EIS is warranted. The Commission will commence the preparation of a programmatic EIS if the programmatic EA demonstrates that “
36. In response to the court's remand and in conjunction with the programmatic EA, the Commission also recently initiated programmatic consultation with FWS under Section 7(a)(1) of the ESA, 16 U.S.C. 1536(a)(1), regarding the effects of registered towers on threatened and endangered species and designated or proposed critical habitats. The Commission already incorporates and implements in Section 1.1307(a) of the Commission's rules its responsibility, under Section 7 of the ESA, to ensure, in consultation with the Secretary of the Interior, that individual proposed Commission actions are not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. However, the court in
37. Below, the Commission first describes a new notice regime to afford members of the public an opportunity to comment on the environmental effects of prospective ASR applications. The Commission then discusses an interim
38. The Commission has consulted with CEQ regarding these rules and procedures as required under CEQ's rules. 40 CFR 1507.3(a). Under CEQ's rules, before adopting procedures implementing NEPA an agency must publish its proposed procedures in the
39. The Commission's final rules take into account the comments submitted in response to the
40. In this Order, the Commission adopts public notice rules and establishes a pre-ASR filing environmental notification process so that members of the public have an avenue for raising environmental concerns, and the agency has a mechanism for addressing those concerns, before an antenna structure registration application is completed and filed with the Commission. We thereby provide a meaningful opportunity for interested parties to seek an EA for actions that do not ordinarily require an EA, as required by the court in
41. Under the process that the Commission adopts today, described in detail below and in a Public Notice that will be issued by the Wireless Telecommunications Bureau before the environmental notification process becomes operational, each prospective applicant for a new tower that requires antenna structure registration, or for a modification of a registered tower that is substantial enough to potentially have a significant environmental impact, must initially submit into the ASR system a partially completed FCC Form 854 that includes information about the proposed antenna structure but is not yet complete for filing. This will consist substantially of information that is already required on Form 854, augmented to include the type of tower structure and the anticipated lighting. The applicant must also provide local notice of its proposed tower through publication in a newspaper or other appropriate means, such as by following the local zoning public notice process. Applicants may provide local notice under both this process and the Commission's procedures implementing Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470f, through a single publication.
42. After local public notice has been provided, the Commission will post the partially completed FCC Form 854 on its ASR Web site in searchable form for 30 days. Members of the public will have an opportunity to file a request for further environmental review (Request) of the proposed tower during this 30-day period. Oppositions will be due 10 calendar days after expiration of the time for filing Requests. Replies will be due 5 business days after expiration of the time for filing oppositions. Oppositions and replies must be served on the parties to the proceeding.
43. Upon completion of the 30-day notice period, the Commission staff, after reviewing any Requests, will notify the applicant whether an EA is required under Section 1.1307(c) or (d) of the Commission's rules. If no EA is required based on the partially completed Form 854 and any Requests, and if the applicant has determined that no EA is otherwise required under Section 1.1307(a) or (b), it may then update and file Form 854 certifying that the tower will have no significant environmental impact. At this point, if all other required information has been provided, the Form 854 will be deemed complete and can be processed accordingly.
44. The Commission recognizes that cases may arise that involve emergency situations, such as where temporary towers need to be built quickly to restore lost communications. Such situations often require grants of special temporary authority (STAs). In such cases, upon an appropriate showing and at the request of the applicant, the processing Bureau may waive or postpone this notice requirement. The Bureau shall ordinarily require in such cases that notice be provided within a short period after authorization or construction, unless the Bureau concludes in a particular case that provision of such notice would be impracticable or not in the public interest. In appropriate circumstances, where a temporary facility constructed in an emergency situation will be replaced by a permanent tower, environmental notification for the temporary and permanent towers may be combined.
45. In addition, after the effective date of these rules, the pre-application process will also become the procedural vehicle for filing and reviewing EAs for registered towers that require an EA. The applicant either may include an EA when it first initiates the environmental notification process if it has determined that the tower meets one of the criteria set forth in Section 1.1307(a) or (b) of the Commission's rules, or it may subsequently submit an EA if the applicant or the Commission later determines that an EA is necessary. The EA will then be posted on the ASR Web site, and members of the public will have the opportunity to object in much the same manner as they can file petitions to deny ASR applications filed with EAs today. However, local notice will be required only once for any tower unless there is a change in location, significant increase in height, or other change in parameters that may cause the tower to have a greater environmental impact. After considering the EA and any Requests, the Commission will
46. The Commission takes these actions pursuant to its “wide discretion in fashioning its own procedures” to implement its environmental obligations.
47. Like the “hard look” rules in
48. The Commission also notes that the record in this proceeding includes two petitions for expedited rulemaking, numerous pleadings in response to two Public Notices seeking comment on the two petitions, and several
49. In this Section, the Commission begins by setting out the actions subject to the new environmental notification process. Second, the Commission discusses the timing of the environmental notification process. Third, the Commission explains its decision to require both local and national notice. Fourth, the Commission discusses the timing and pleading standards governing Requests for further environmental review. Fifth, the Commission discusses applications that require a service-specific application in addition to FCC Form 854. Finally, the Commission discusses the treatment of applications that are pending on the effective date of the new environmental notification rules and procedures.
50.
51.
52. Consistent with this principle, the Commission applies the environmental notification process to all ASR applications for new towers (except as described in paragraph 57,
53. FCC Forms 854 that are submitted for purely administrative purposes or to report modifications of a nature that do not have a potentially significant environmental effect will not be subject to the environmental notification process. Thus, where an applicant is required to submit an FCC Form 854 only for notification purposes, such as to report a change in ownership or contact information, the dismantlement of a registered tower, tower repair, replacement of tower parts, or any modification that does not involve the physical structure, lighting, or geographic location of a registered antenna structure, the applicant will not have to complete the environmental notification process prior to submitting the Form 854. Instead, the applicant will be able to indicate that it is submitting the application form only to effect an administrative change or notification, for which the pre-application environmental notification process is not required.
54. In the case of replacement towers or modifications to existing towers, including collocations on existing towers or other structures, the applicability of the environmental notification process will depend upon the nature of any change to the existing structure. The MOU defines a Replacement Tower for which public notice should not be required as a communications tower the construction of which does not involve a substantial increase in size to the tower it is replacing, as defined in Section III.B. of the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (NPA), 47 CFR part 1, appendix C, or construction or excavation more than 30 feet beyond the existing tower property. Consistent with this recommendation, as an interim measure pending completion of its programmatic environmental analysis, the Commission will not require the environmental notification process for any replacement tower at the same location as an existing tower, not involving a change in lighting, so long as it does not involve a substantial increase in size under Section III.B of the NPA or construction or excavation more than 30 feet beyond the tower property. The Commission considers a replacement tower located less than one second longitude and latitude from an existing tower which does not require a new aeronautical study with an FAA determination to be at the same location. Similarly, the Commission will not require notice where an antenna is being placed on an existing tower or non-tower structure and the placement of the antenna does not involve a substantial increase in size or excavation more than 30 feet beyond the property. If a proposed tower replaces another tower but involves a substantial increase in size or construction or excavation more than thirty feet beyond the tower property, it is not exempted from the environmental notification process as a replacement tower. Additionally, where an EA is required to be filed for a replacement tower under Section 1.1307(a) or (b) of the Commission's rules or if the Bureau determines that an EA is required under Section 1.1307(c) or (d) of the Commission's rules, such a tower is not exempted from the environmental notification process.
55. The notice regime for ASR applications that involve changes in lighting to existing towers or replacement towers will depend on the nature of the lighting change. The parties to the MOU developed a ranking of FAA Lighting Styles based on their likely effect on migratory birds and recommended that public notice be required for a change to a less preferred but not to a more preferred FAA Lighting Style. However, recommendations from the Department of Interior Office of Environmental Policy and Compliance and FWS based on recent scientific literature strongly suggest that L-810 steady-burning lights pose the greatest danger of migratory bird mortality and that the differences among styles of flashing or blinking lights are not statistically significant. Therefore, the Commission declines Blooston Commenters' proposal to base decisions regarding environmental processing on whether red or white lights are used. There is insufficient evidence in the record that the color of lighting is a critical factor in determining avian mortality. In addition, Conservation Groups recommend that the Commission verify the continuing accuracy of the order of tower lighting styles specified in the MOU. Furthermore, the FAA may soon consider changes to Advisory Circular AC 70/7460 that would permit use of red flashing or blinking lights without steady-burning L-810s. In these circumstances, pending completion of its programmatic environmental
56. Where information pertaining to a prospective antenna structure registration is amended after environmental notification but prior to grant of an ASR application, the Commission generally will require a new environmental notification only if the amendment is of a nature that would have required environmental notification in the context of an application for replacement or modification of an existing tower. To prevent abuse, however, the Commission will require the applicant to provide a new environmental notification to the public for any amendment that increases the proposed tower height, even if it does not constitute a substantial increase in size.
57.
58.
59. Applicants will be required to complete environmental notification before filing their completed ASR applications, and may do so before receiving the FAA's No Hazard Determination. (A prospective applicant that submits its environmental notification information before receiving a No Hazard Determination should specify the lighting that it expects will be prescribed for the tower. In the event the FAA specifies a less preferred lighting style, it will have to provide a second notice with the corrected information.) Thus, the environmental notification process constitutes a notification, not a certification, and submission of the partially completed Form 854 without an EA is not a representation to the Commission that the tower will have no significant environmental effects. This certification will be required when the environmental notification process is complete and the applicant files its completed FCC Form 854. Completing the pre-ASR filing environmental notification process as an initial step before a complete ASR application can be filed with the Commission ensures that interested persons have a timely opportunity to participate in a manner that can inform the Commission's decision-making with respect to an individual ASR application. This is also consistent with Section 1501.2 of the CEQ regulations, which generally directs that the Federal agency commence the NEPA process as early as possible and before there has been any inadvertent, irretrievable commitment of resources. 40 CFR 1501.2(d)(3). Earlier completion of the notification process further serves the public interest because it requires less change to the automated ASR system, upon which the FAA currently relies to ensure air navigation safety, and that has operated for more than a decade efficiently and without material error. Moreover, from a processing standpoint, applicants can complete the notice process simultaneously with other processes, including environmental reviews that may require consultation with other Federal agencies, obtaining the FAA No Hazard Determination, and local zoning. Therefore, the environmental notification process will not ordinarily cause additional delays unless environmental issues are raised.
60. In addition, under the new process EAs for proposed registered towers will be filed, made available for public comment, and reviewed prior to filing of the ASR application. Accordingly, the 30-day comment period will be announced on the Commission's ASR Web site instead of through a notice published in the
61. The Commission requires both national and local notice for towers that must be registered in the ASR system in order fully to inform all parties that may be interested in or affected by the environmental consequences of a proposed tower. The Commission recognizes that the environmental effects of a specific proposed tower construction may be of national concern, of local concern, or of both national and local concern. Conservation groups and some industry parties have urged that the Commission adopt national notice, while other industry commenters have suggested that the Commission adopt local notice. Their reasons in favor of one approach or another are discussed here, but in effect those reasons support using both forms of notice.
62. National notice provided online at the Commission's Web site was an approach suggested by the
63. Local notice complements the broad reach of national notice by enabling persons likely to be directly affected by the potential environmental effects of proposed antenna structures at specific locations to raise concerns of which national entities may not be aware. It also reaches those persons or entities without an institutional concern in safeguarding a particular aspect of the environment but with a potential interest in the effects of tower sitings in their immediate communities. The Commission has successfully implemented local notice for historic preservation review and for radio broadcast applications, and the local notice requirements the Commission promulgates today are modeled after those regimes.
64. The Commission finds that by requiring both local and national notice, it can best meet its statutory responsibility regarding the development of procedures that incorporate environmental considerations into agency decision-making. 42 U.S.C. 4331(b), 4332(2)(B). In particular, these requirements effectuate the mandate of Section 1506.6(b) of the CEQ regulations that Federal agencies shall “provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies that may be interested or affected.” 40 CFR 1506.6(b). CEQ has further clarified that “[t]he objective is to notify all interested or affected parties,” and that “[a] combination of methods may be used to give notice.”
65. In sum, the Commission will require prospective ASR applicants to provide local notice of their proposals, either by publication in a local newspaper of general circulation or by other appropriate means. The Commission will also post notice of each prospective application on its Web site on the date requested by the applicant, which must be on or after the date the applicant provides local notice. Interested parties will have an opportunity to respond to these notices by filing Requests for further environmental review with the Commission. By requesting the applicant to specify the date for national notice, the Commission allows applicants to coordinate the local and national notice periods as closely as possible, while also assuring that the
66. An interested member of the public who believes that a proposed tower (including a covered tower modification) may have a significant impact on the environment may submit a Request for further environmental review to the Commission pursuant to Section 1.1307(c) of the Commission's rules. The Request must be received by the Commission within 30 days after notice of the proposed tower both has been provided locally and has been made available nationally through the ASR Web site. The time period will be computed according to the general rule prescribed in Section 1.4(c) of the Commission's rules. Requests will be subject to the pleading standard that is set forth in Section 1.1307(c) of the Commission's rules. Late pleadings or pleadings that do not meet the standards in Section 1.1307(c) may be subject to dismissal.
67. In setting the period to file a Request at 30 days, the Commission applies to all ASR filings subject to the environmental notification process the same time period that is currently in place for challenges to ASR filings with EAs. The Commission rejects the Infrastructure Coalition's proposal to set the period to object at 14 days, as well as proposals by other commenters to set the time period at 15 to 20 days, as the Commission finds that such a timeframe is inadequate to allow for meaningful public participation in this context. At the same time, the Commission rejects the 60-day comment period proposed by the Conservation Groups. The Commission does not believe that interested parties should need that much time to file comments, particularly as it does not require the objecting party to include a comprehensive study of impacts to evaluate whether the requirements of applicable environmental laws are properly met. Rather, as discussed below, it is sufficient that a Request “set[s] forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process.” 47 CFR 1.1307(c). Therefore, the Commission concludes that a 60-day comment period would unnecessarily obstruct the timely deployment of services while providing minimal benefit.
68. Pursuant to Section 1.1307(c) of the Commission's rules, a request for further environmental processing of an otherwise categorically excluded proposed action must “set[] forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process.” In addition, Section 1.1307(c) cross-references Section 1.1313 of the rules. Section 1.1313(a) provides that “[i]n the case of an application to which section 309(b) of the Communications Act applies, objections based on environmental considerations shall be filed as petitions to deny.” This means, among other things, that the objection must include “specific allegations of fact sufficient to make a
69. In its Petition, the Infrastructure Coalition asks the Commission to require that any objection on environmental grounds filed against an ASR application must be filed as a petition to deny under Section 1.1313(a). It argues that such procedures are necessary to prevent frivolous objections. Several commenters representing licensees and tower owners support the Infrastructure Coalition's petition. The Conservation Groups, however, oppose application of the petition to deny standard to these objections, arguing that it would limit the public's ability to participate in the NEPA process.
70. The Commission declines to apply the petition to deny standard to Requests for further environmental review of prospective registered towers. First, Section 1.1313(a) by its terms does not apply to such Requests. Section 1.1313(a) encompasses objections to applications to which Section 309(b) of the Communications Act applies; i.e., applications for an instrument of authorization for a station in the broadcasting or common carrier services, or in certain other services if the Commission so prescribes by rule. Here, a Request would not be filed in response to any application, but in response to a notification that precedes an application for antenna structure registration. Even if the tower proponent elects to file an associated license application before completion of the environmental notification process, such application will be filed subject to completion of the environmental notification process so that the tower proponent will not yet have made any affirmative certification as to environmental effect. Thus, the Request for environmental processing in response to the environmental notification falls outside the scope of Section 1.1313(a).
71. Moreover, the Commission finds it better as a matter of policy to require these Requests only to set forth detailed reasons for environmental consideration as provided in Section 1.1307(c). Section 1500.2(d) of the CEQ regulations requires Federal agencies to encourage and facilitate public involvement in decisions that affect the quality of the human environment.
72. Under the Commission's rules, some proposed towers are subject to both ASR and service-specific application requirements. The Commission's current rules and procedures vary by licensed service regarding when and how an EA is submitted for towers that may significantly affect the environment where more than one application is filed. Applications for Wireless Radio Authorization (FCC Form 601) involving major modifications (including all applications for facilities that may have a significant environmental effect) are routinely placed on public notice, but that notice does not distinguish applications filed with attached EAs from other license applications that may not involve tower construction or potential environmental effects. An applicant may attach an EA to either its Form 601 or Form 854 application, and may rely on a resulting FONSI to certify on the other application that its action will have no significant environmental effect. Broadcast construction (
73. Some commenters argue that Section 1506.6 of the CEQ rules requires that the Commission notify the public separately regarding each application associated with a proposed antenna structure subject to registration under part 17. Others contend that it is sufficient to provide a single opportunity, in connection with the ASR process, for the public to comment on the environmental effects of each proposed tower. Consistent with current procedures that generally require only one NEPA review for a single proposed antenna structure, the Commission is not persuaded that, from an environmental standpoint, the decision-making involved in processing service-specific construction permits or license applications raises discrete issues from those involved in determining whether to register a tower from which licensed communications service will be provided. The Commission's obligation to accommodate public participation in its NEPA procedures for registering communications towers does not require that the public be afforded multiple opportunities to comment on the environmental effects of a single tower project simply because both a tower registration and a construction permit or license are required to authorize operation from the proposed tower.
74. At the same time, it is important that every registered tower (other than the exceptions discussed above) complete procedures that ensure a specific opportunity for the public to voice environmental concerns, as stated in the court's order. The public may not have this opportunity if applicants can avoid environmental notification by attaching any required EA for a proposed antenna structure to a service-specific construction permit or license application (
75. The Commission also implements procedures that will enable applicants for licenses that require frequency coordination to submit FCC Form 601 before completing the environmental notification process. Under the Commission's current procedures, FCC Form 601 cannot be filed for a facility that requires antenna structure registration until antenna structure registration has been granted. The Land Mobile Communications Council expresses concern that if the Commission were to continue to require grant of ASR before the FCC Form 601 could be filed, a party whose environmental notification generated an environmental Request necessitating review could lose its frequency to a second party whose later notification generated no Requests and that the notice process itself might alert a potential competing applicant to the benefit of such action. To address such concerns, the Commission will permit wireless radio, public safety, and other license applicants whose proposed towers are subject to registration to file FCC Form 601 before completing the environmental notification process so long as the applicant has obtained its FAA No Hazard Determination and notice has been provided both locally and through the Commission's Web site. In addition, in order to guard against speculative reservations of frequencies or sites, the Commission also requires FCC Form 601 applicants that have not yet obtained their ASR Registration Number to provide the Commission with an update of the status of their environmental review every 60 days.
76. The Commission clarifies that the environmental process will not affect the processing of a licensing application for a collocation on an existing tower that has an ASR application pending for a change that is unrelated to the collocation. For example, the tower owner may have a pending application to change the lighting system or increase the tower height to accommodate a different collocator. In such instances, the processing of the license application for the unrelated collocation will proceed independently of the ASR application.
77. The effective date of the environmental notification requirements will be established in a Public Notice to be issued by the Wireless Telecommunications Bureau. ASR applications that are pending on the effective date ordinarily will not be required to complete the environmental notification process. However, an amendment to an ASR filing that occurs after the effective date will be subject to the environmental notification requirements as set forth above. Similarly, amendments to an EA may require environmental notification.
78. The Commission is obligated under NEPA to avoid irretrievable commitments of resources without assessing the environmental effects of its actions and “to predict the environmental effects of a proposed action before the action is taken and those effects are fully known.”
79. Meanwhile, the Commission establishes interim processing procedures to protect migratory birds pending the completion of this process. Specifically, the Commission applies Section 1.1307(d) of its rules, 47 CFR 1.1307(d) to require that an EA that includes a discussion of potential impacts on migratory birds be filed for any proposed new registered tower over 450 feet in height AGL. This requirement will also apply to: replacement towers over 450 feet in height AGL that involve a substantial increase in size to the tower being replaced; expansions of existing towers over 450 feet in height AGL that constitute a substantial increase in size; and conversions of a tower over 450 feet in height AGL to a less preferred lighting style. For all other registered towers, an EA will not be routinely required except as specified in Section 1.1307(a) or (b). The Commission will continue to apply Section 1.1307(c) and (d) on a case-by-case basis to determine whether an EA is required for any such tower, taking into consideration any Requests received during the public notice period.
80. The Commission adopts these interim measures pursuant to the mandate in Section 1.1307(d) of its rules that the processing Bureau shall require an EA if it determines that an otherwise categorically excluded proposal may have a significant environmental effect. In
81. The Commission's selection of 450 feet AGL as the threshold for the interim EA filing requirement is consistent with evidence in the Migratory Birds rulemaking record and elsewhere. As illustrated in Figure 12 of the Draft Programmatic Environmental Assessment of the Antenna Structure Registration Program (Aug. 26, 2011) (Draft Programmatic EA), data from existing studies show no evidence of large-scale mortality for towers less than approximately that height. Data from the peer-reviewed Michigan Bird Study, for instance, confirm the relevance of tower height in assessing the degree of risk to migratory birds at individual towers. That study suggests that avian collisions occur 68-86 percent less frequently at towers between 380 and 480 feet AGL compared with towers greater than 1,000 feet AGL. Joelle Gehring, Paul Kerlinger, and Albert M. Manville II,
82. The Commission adopts the EA requirement for proposed towers over 450 feet in height AGL as a reasonable, temporary measure for the protection of migratory birds pending completion of the programmatic EA, which will evaluate whether scientific evidence supports adoption of permanent measures. Further, the interim measure is temporary and is consistent with the tower height threshold for requiring an EA proposed in the consensus MOU between industry representatives and environmental groups. In particular, under the MOU, new towers taller than 450 feet AGL would require an EA for avian effects. New towers of a height of 450 feet or less AGL, as well as replacement towers and other ASR filings, would not initially require an EA as a categorical matter. The inclusion in the MOU of a 450-foot threshold for an interim EA filing requirement supports the Commission's conclusion that this interim requirement strikes an appropriate balance between protecting migratory birds and ensuring that ASR applications can be processed in a manner that facilitates the rapid deployment of communications services.
83. In assessing, pursuant to Sections 1.1307(c) and (d), whether further environmental processing is necessary for particular towers 450 feet in height or less AGL, the Commission expects that the processing Bureau will consider factors including the height of the tower and the lighting to be used. Consistent with the MOU, the Commission recognizes that a tower close to 450 feet in height AGL is more likely to have a significant environmental impact on migratory birds than a tower closer to 200 feet in height. The Commission further expects that the Bureau will afford significant weight to the absence of public objection in response to the notice of proposed construction that the Commission requires today.
84. The Commission clarifies that if a proposed tower is initially submitted for environmental notification with a height of 450 feet AGL or less and the submission is subsequently amended so that the height will exceed 450 feet AGL, an EA will be required even if the change does not constitute a substantial increase in size. The Commission finds that this provision is necessary in order to ensure that prospective applicants for towers just above 450 feet AGL do not game the system.
85. For purposes of clarity, the Commission adds a note to Section 1.1307(d) of its rules to describe the circumstances in which the Wireless Telecommunications Bureau shall require, or consider whether to require, an environmental assessment with respect to migratory birds for antenna structures subject to registration under part 17 of its rules. This note will remain in effect pending the outcome of the programmatic EA and any subsequent programmatic EIS if required, and pending the completion of this rulemaking by means of a decisional order. The Commission delegates authority to the Wireless Telecommunications Bureau to adopt
86. This Section outlines the environmental notification process that an applicant for the registration of an antenna structure must undertake before filing a completed Antenna Structure Registration (ASR) application on FCC Form 854. Technical details about the process for submitting this pre-filing notification will be provided in a Public Notice that will be released before the rules take effect. The Commission delegates to the Wireless Telecommunications Bureau (WTB) the authority to change procedural aspects of the process outlined below by Public Notice so long as those changes do not affect the substantive rights of any party.
• Applicants will commence the process by submitting information on FCC Form 854, including information regarding the location, height, type, and lighting of the proposed structure. This is a pre-application submission that does not constitute the filing of a completed application.
○ The applicant may commence the environmental notification process on Form 854 either before or after it receives an FAA No Hazard Determination. If the applicant commences the process before the No Hazard Determination is received, the applicant must provide the anticipated lighting and must later amend its submission if the FAA-approved lighting is different.
○ The environmental notification process may be conducted simultaneously with other processes, including environmental reviews that may require consultation with other Federal agencies and local zoning procedures.
○ The FCC will assign the proposed construction a unique file number when the partially completed Form 854 is submitted.
• Following the initial Form 854 submission, the applicant shall provide local notice either by publication in a local newspaper of general circulation or by other appropriate means, such as by following local zoning public notice requirements.
○ The text of the local notice must include:
The descriptive information submitted in the Form 854 as part of the environmental notification process;
Instructions for filing any Request for further environmental review no later than 30 days after information on the proposed tower is posted on the FCC's Web site, including the relevant electronic and regular mail addresses and the unique Form 854 File Number issued by the FCC; and
Instructions for serving a copy of any Request upon the applicant.
○ Applicants may provide through a single publication local notice under both this process and the Commission's procedures implementing section 106 of the National Historic Preservation Act (NHPA),
The single notice satisfies the timing requirements of both provisions, and it clearly describes and distinguishes both the requirement to file environmental Requests with the Commission and the separate process for submitting comments regarding potentially affected historic properties to the applicant.
The applicant forwards any comment that substantially relates to potentially affected historic properties to the State Historic Preservation Officer or Tribal Historic Preservation Officer, in accordance with the terms of the Nationwide Programmatic Agreement.
• The applicant shall state in its initial FCC Form 854 submission the date on which it requests that the FCC provide national notice of the proposed construction. This date must be on or after the date the applicant provides local notice.
○ On or after the national notice date the applicant has requested, the Commission will post the information contained in the applicant's initial Form 854 submission, or a link to such information, in searchable form on its Web site. This information will remain posted for 30 days.
○ If local notice is not provided before the requested national notice date, the applicant must amend its Form 854 submission to provide a new national notice date.
• Facilities That Also Require Service-Specific Applications.
○ Applicants that submit both an ASR application and a service-specific application for a particular tower must complete the environmental notification process on Form 854 and submit any required Environmental Assessment (EA) through that process. Depending on the service, the applicant may also be required to file a copy of the EA with its service-specific application.
• Wireless radio, public safety, and other applicants whose proposed towers are subject to registration and require a license application on FCC Form 601 must have begun the Form 854 environmental notification process before filing Form 601, but may file Form 601 before completing the Form 854 environmental notification process.
○ In the event an EA is required, it shall be filed only with Form 854. WTB will provide instructions at a later date for completing the environmental question on Form 601 in such situations.
○ Applicants whose proposed towers require an EA but do not require registration shall continue to file an EA with Form 601.
• An applicant that chooses to file FCC Form 601 before the environmental notification process is complete must have already obtained an FAA No Hazard Determination and provided local notice of the proposed construction, and the FCC must have posted notification of the proposed construction on its Web site.
○ Such an applicant shall provide its Form 854 File Number in place of the ASR Registration Number that is currently required.
○ Upon grant of the ASR application, the applicant must amend the FCC Form 601 to replace the Form 854 File Number with the ASR Registration Number.
• FCC Form 601 applicants that have not yet obtained their ASR Registration Number must provide the Bureau with an update of the status of their environmental review every 60 days from the date the FCC Form 601 was filed. Failure to provide the update may result in dismissal of the FCC Form 601 application.
○ Such an update must reflect active pursuit of the environmental review.
○ Updates will not be required while action on the environmental notification filing is pending at the Commission, such as when the Commission is considering whether to grant a Request for further environmental processing or is reviewing a filed EA.
○ WTB will prescribe by public notice the procedures for providing such updates.
• An applicant electing to file the associated license application after completion of environmental processing should use its ASR Registration Number to file FCC Form 601 in the first instance, as is the practice today.
• An applicant to build a facility in any broadcast service that also requires the completion of FCC Form 854 will now be required to submit a Form 854 environmental notification filing and,
○ The same EA must be submitted with both the broadcast construction permit application and the Form 854 environmental notification submission.
○ Applicants whose proposals do not require registration but do require an EA under Section 1.1307 (such as construction in a flood plain that does not require ASR) should file the EA only with the construction permit application form.
• The Media Bureau may continue to accept applications requiring ASR that are submitted prior to obtaining an ASR Registration Number, with the caveat that such applications will not be granted until the environmental notification process has been completed and the ASR Registration Number supplied.
○ Applicants whose applications can be filed outside specified filing windows, such as applications for minor changes to existing authorizations, and whose tower projects require registration, may elect to file their construction permit applications either before or after completing the Form 854 environmental notification process.
○ Applicants that file the construction permit application after completing the environmental notification process and obtaining a grant of Antenna Structure Registration shall either answer “Yes,” or “No” with an attached EA, in response to the environmental certification question on the construction permit application.
○ Applicants that file their construction permit applications before completion of the environmental notification process are advised to check “No” in response to the environmental certification question on the construction permit application, indicating that the project has not been determined to be excluded from environmental processing.
Such an applicant should also attach to the Application an Exhibit (called for by the environmental certification item in each broadcast construction permit form) explaining whether or not the applicant has commenced the evaluation of the environmental effects of any proposed construction and where the applicant is in that process.
• Applicants for new construction permits or major changes that are subject to the Commission's competitive bidding procedures initiate the process with the generic FCC Form 175 (Application to Participate in an FCC Auction) rather than a service-specific application (such as those listed above) containing an environmental certification.
○ FCC Form 175 does not contain an environmental certification, and no environmental review or environmental notice is necessary to submit it.
○ Only the winning bidder who has made the final bid payment will need to submit a “long-form,” service-specific application, and it is at that time that an applicant subject to ASR will need to undertake the pre-ASR environmental notification process and complete Form 854.
○ Similarly, after a dispositive preference is awarded under Section 307(b) of the Communications Act, an applicant subject to ASR will need to undertake the pre-ASR environmental notification process and complete Form 854.
• An earth station license applicant using FCC Form 312 or 312EZ, which is required under Part 17 to notify the FAA of its plans to construct an antenna structure (e.g., an earth station), must complete the environmental notification process prior to submission of a complete FCC Form 854 to register the antenna structure.
○ An applicant filing FCC Form 312 will be required to attach a completed FCC Form 854 to its FCC Form 312 application.
○ An applicant filing FCC Form 312EZ electronically will instead be required to provide its ASR Registration Number in the appropriate Section of the FCC Form 312EZ.
○ If an EA was required as part of the environmental notification process and the Bureau issued a Finding of No Significant Impact (FONSI), the applicant will no longer be required to submit an EA with its FCC Form 312 or 312EZ. Instead, the applicant will be able to rely on the FONSI in order to indicate on its license application that the proposed earth station will not have a significant environmental effect.
• Amendments to FCC Form 854 that are filed after the provision of local notice or posting on the FCC's Web site do not require new local or national notice if made only for the following purposes:
○ Changes to administrative information or other changes not affecting the structure's location, height, lighting, or physical configuration.
○ Changes to a more preferred or equally preferred lighting style as set forth in amended rule Section 17.4(c)(1)(iii), including removal of proposed lighting.
○ Reduction in the height of the structure, unaccompanied by any other change in the physical structure of the proposed tower.
• All other changes to the location, physical characteristics, or lighting of the proposed structure will require an additional local notice, an additional national notice, and re-initiation of the 30-day period for interested persons to submit Requests for further environmental review.
○ Such changes include any increase in the height of the structure even if the increase does not constitute a substantial increase in size.
• An amendment to add an EA will require a new posting on the FCC's Web site and opportunity for comment but not a new local notice (see Section F below).
• Requests for further environmental review must be received by the Commission within 30 days after information regarding a proposed construction is posted on the Commission's Web site. Late filed Requests may be subject to dismissal.
○ The Wireless Telecommunications Bureau will make provision for filing of Requests either electronically or by mail. To ensure timely receipt and to facilitate processing, electronic filing will be strongly encouraged.
○ Requests must be served on the prospective applicant.
• Oppositions will be due 10 calendar days after expiration of the time for filing Requests. Replies will be due 5 business days after expiration of the time for filing oppositions. Oppositions and replies must be served on the parties to the proceeding.
• Proceedings involving environmental filings for a specific structure are restricted proceedings under Section 1.1208 of the Commission's rules. Information presented to the Bureau must be served on all parties pursuant to Section 1.1202(d) of the Commission's rules.
• After completion of the 30-day notice period and after reviewing any Requests, the Commission staff will notify the applicant whether an EA is required under Section 1.1307(c) or (d) of its rules. Staff will make every effort to provide this notification as promptly as possible, particularly in cases where no Requests are received.
• If no EA is required based on the Form 854 filing and any Requests, and if the applicant has determined that no EA is otherwise required under Section 1.1307(a) or (b), it may then update Form 854 to certify that the tower will have no significant environmental impact.
• At this point, if all other required information has been provided, the Form 854 will be deemed complete and can be processed accordingly.
• If an applicant is required, under the Commission's rules, to file an Environmental Assessment (EA) in connection with a structure that is required to be registered, such EA must be filed as part of the environmental notification process.
○ An applicant may determine that an EA is necessary when it makes its initial filing, in which case it will attach the EA to that filing.
○ Alternatively, an EA may be supplied at a later date by amending an existing filing, if either the applicant or the Commission determines that a potentially significant environmental effect may exist.
• Regardless of when in the process it is filed, the EA will be placed on notice on the Commission's Web site, thus commencing a 30-day period for public comment.
○ If the EA is filed with the initial Form 854 submission, it must also be placed on local notice in the same manner as an environmental notification filing without an attached EA.
○ If the EA is added to a Form 854 submission that has already gone on local notice, additional local notice is not required in most instances.
The prospective applicant must serve the EA on any party that has filed a Request in response to the earlier notice.
A second publication in a local newspaper of general circulation or equivalent local notice will be required if there has been a change in the proposed structure's geographic location, height, configuration, or lighting, other than a reduction in height or a change to a more preferred or equally preferred lighting style.
• After considering the EA and any Requests, the Bureau will either issue a Finding of No Significant Impact (FONSI), require amendments to the EA, or determine that an Environmental Impact Statement is needed.
• Upon issuance of a FONSI, the applicant may complete the Form 854 filing to certify that the tower will have no significant environmental impact.
87. The Commission has determined that the environmental notification rules and the implementation of interim processing standards, pursuant to Section 1.1307(d), do not require the publication of a general notice of proposed rulemaking so as to require the preparation of a Regulatory Flexibility Analysis pursuant to the Regulatory Flexibility Act, 5 U.S.C. 603, 604 (RFA).
88. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
89. The Commission will send a copy of this Order on Remand to Congress and the Government Accountability Office, pursuant to the Congressional Review Act,
90. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
91. Accordingly,
92.
93.
94.
95.
96.
97.
Administrative practice and procedure, Environmental impact statements, and Reporting and recordkeeping requirements.
Aviation safety, Communications equipment, and Reporting and recordkeeping requirements.
Communications equipment, and Reporting and recordkeeping requirements.
Administrative practice and procedure, Communications equipment, and Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 7, 22, 24, 25, 27, 80, 87 and 90 as follows:
15 U.S.C. 79
(a) * * *
(2) In accordance with § 1.1307 and § 17.4(c) of this chapter, the Bureau will address any environmental concerns prior to processing the registration.
(d)
(1) The antenna structure owner has filed an antenna structure registration application (FCC Form 854);
(2) The antenna structure owner has provided local notice and the Commission has posted notification of the proposed construction on its Web site pursuant to
(3) The antenna structure owner has obtained a Determination of No Hazard to Aircraft Navigation from the Federal Aviation Administration. In such instances, the applicant shall provide the FCC Form 854 File Number on its application. Once the antenna structure owner has obtained the Antenna Structure Registration Number, the applicant shall amend its application to provide the Antenna Structure Registration Number, and the Commission shall not grant the application before the Antenna Structure Registration Number has been provided. If registration is not required, the applicant must provide information in its application sufficient for the Commission to verify this fact.
(e)
(2) For applications that propose any facilities that are not subject to the process set forth in § 17.4(c) of this chapter, the applicant is required to indicate at the time its application is filed whether or not a Commission grant of the application for those facilities may have a significant environmental effect as defined by § 1.1307. If the applicant answers affirmatively, an Environmental Assessment, required by § 1.1311 must be filed with the application and environmental review by the Commission must be completed prior to construction.
(a) * * *
(4) Application or amendment requesting authorization for a facility that may have a significant environmental effect as defined in § 1.1307, unless the facility has been determined not to have a significant environmental effect through the process set forth in § 17.4(c) of this chapter.
(g)
(b) * * *
The specific height of an antenna tower or supporting structure, as well as the specific diameter of a satellite earth station, in and of itself, will not be deemed sufficient to warrant environmental processing,
(d) * * *
Pending a final determination as to what, if any, permanent measures should be adopted specifically for the protection of migratory birds, the Bureau shall require an Environmental Assessment for an otherwise categorically excluded action involving a new or existing antenna structure, for which an antenna structure registration application (FCC Form 854) is required under part 17 of this chapter, if the proposed antenna structure will be over 450 feet in height above ground level (AGL) and involves either:
1. Construction of a new antenna structure;
2. Modification or replacement of an existing antenna structure involving a substantial increase in size as defined in paragraph
3. Addition of lighting or adoption of a less preferred lighting style as defined in § 17.4(c)(1)(iii) of this chapter. The Bureau shall consider whether to require an EA for other antenna structures subject to § 17.4(c) of this chapter in accordance with § 17.4(c)(8) of this chapter. An Environmental Assessment required pursuant to this note will be subject to the same procedures that apply to any Environmental Assessment required for a proposed tower or modification of an existing tower for which an antenna structure registration application (FCC Form 854) is required, as set forth in § 17.4(c) of this chapter.
§§ 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, Interpret or apply 301, 309, 48 Stat. 1081, 1085, as amended; 47 U.S.C. 301, 309.
(c) Each prospective applicant must complete the environmental notification process described in this paragraph, except as specified in paragraph (c)(1) of this section.
(1)
(i) For notification only, such as to report a change in ownership or contact information, or the dismantlement of an antenna structure;
(ii) For a reduction in height of an antenna structure or an increase in height that does not constitute a substantial increase in size as defined in paragraph I(C)(1)-(3) of Appendix B to part 1 of this chapter, provided that there is no construction or excavation more than 30 feet beyond the existing antenna structure property;
(iii) For removal of lighting from an antenna structure or adoption of a more preferred or equally preferred lighting style. For this purpose lighting styles are ranked as follows (with the most preferred lighting style listed first and the least preferred listed last): no lights; FAA Lighting Styles that do not involve use of red steady lights; and FAA Lighting Styles that involve use of red steady lights. A complete description of each FAA Lighting Style and the manner in which it is to be deployed can be found in the current version of FAA, U.S. Dept. of Transportation, Advisory Circular: Obstruction Marking and Lighting, AC 70/7460;
(iv) For replacement of an existing antenna structure at the same geographic location that does not require an Environmental Assessment (EA) under § 1.1307(a) through (d) of this chapter, provided the new structure will not use a less preferred lighting style, there will be no substantial increase in size as defined in paragraph I(C)(1)-(3) of Appendix B to part 1 of this chapter, and there will be no construction or excavation more than 30 feet beyond the existing antenna structure property;
(v) For any other change that does not alter the physical structure, lighting, or geographic location of an existing structure; or
(vi) For construction, modification, or replacement of an antenna structure on Federal land where another Federal agency has assumed responsibility for evaluating the potentially significant environmental effect of the proposed antenna structure on the quality of the human environment and for invoking any required environmental impact statement process, or for any other structure where another Federal agency has assumed such responsibilities pursuant to a written agreement with the Commission.
(2)
(3)
(4)
(5)
(i)
(ii)
(6)
(7)
(8)
(9)
47 U.S.C. 154, 222, 303, 309, 332.
(d) * * *
(4) For any construction or alteration that would exceed the requirements of § 17.7 of this chapter, the licensee has notified the appropriate Regional Office of the Federal Aviation Administration (FAA Form 7460-1), secured a valid FAA determination of “no hazard,” and received antenna height clearance and obstruction marking and lighting specifications (FCC Form 854R) from the FCC for the proposed construction or alteration.
47 U.S.C. 154, 301, 302, 303, 309, 332.
(b)
(f)
47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309, and 332 of the Communications Act, as amended, 47 U.S.C. 154, 301, 302, 303, 307, 309, 332.
(a) Construction permits are not required for satellite earth stations. Construction of such stations may commence prior to grant of a license at the applicant's own risk. Applicants must comply with the provisions of 47 CFR 1.1312 relating to environmental processing prior to commencing construction. Applicants filing applications that propose the use of one or more new or existing antenna structures requiring registration under part 17 of this chapter must also comply with any applicable environmental notification process specified in § 17.4(c) of this chapter.
(c) * * *
(2) * * *
(vi) * * *
(A) * * *
(
47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, 337.
(b)
(f)
47 U.S.C. 154, 303, 307(e), 309, 332.
(b)
(e)
47 U.S.C. 154, 303, 307(e).
(b)
(e)
47 U.S.C. 154(i), 11, 303(g), 303(r), 332(c)(7).
(b)
(f)
(g) The environmental assessment required by §§ 1.1307 and 1.1311 of this chapter, if applicable. If an application filed under this part proposes the use of one or more new or existing antenna structures that require registration under part 17 of this chapter, any required environmental assessment should be submitted pursuant to the process set forth in § 17.4(c) of this chapter rather than with the application filed under this part.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure.
NMFS is opening directed fishing for Pacific cod by non-American Fisheries Act (AFA) crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the Gulf of Alaska (GOA) for seven days. This action is necessary to fully use the A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), January 23, 2012 through 1200 hrs, A.l.t., January 30, 2012. Comments must be received at the following address no later than 4:30 p.m., A.l.t., February 10, 2012.
You may submit comments on this document, identified by NOAA-NMFS-2012-0010, by any of the following methods:
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Josh Keaton, (907) 586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA is 98 metric tons as established by the final 2011 and 2012 harvest specifications for groundfish in the GOA (76 FR 11111, March 1, 2011) and inseason adjustment (77 FR 438, January 5, 2012).
NMFS closed directed fishing for Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA under § 680.22(e)(3) on January 1, 2012 (76 FR 81860, December 29, 2011).
As of January 17, 2012, NMFS has determined that approximately 98 metric tons remains in the A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA. Furthermore, NMFS has determined that this remaining amount of Pacific cod is sufficient to support a directed fishery. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA, NMFS is terminating the previous closure and is reopening directed fishing of Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA will be reached after seven days. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 88 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow of Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until February 10, 2012.
This action is required by § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Electricity Delivery and Energy Reliability, Department of Energy.
Notice of extension of public comment period.
This document announces that the period for submitting comments on the proposed rule for the coordination of Federal Authorizations for Electric Transmission Facilities has been extended until February 27, 2012.
DOE will accept comments, data, and information regarding the proposed coordination rule published December 13, 2011 (76 FR 77432) until February 27, 2012.
Any comments submitted must be identified as comments on the “Proposed 216(h) Regulations”. Comments may be submitted using any of the following methods:
•
•
•
Brian Mills, Office of Electricity Delivery and Energy Reliability (OE-20), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, Phone (202) 586-8267, email
On December 13, 2011, DOE published a proposed rule in the
DOE has determined that an extension of the public comment period is appropriate based on the foregoing reasons and is hereby extending the comment period. DOE will consider any comments received by February 27, 2012.
Federal Housing Finance Agency.
Advance notice of proposed rulemaking; request for comments; Notice of intent to prepare environmental impact statement; request for scoping comments.
The Federal Housing Finance Agency (“FHFA”) hereby issues this Advance Notice of Proposed Rulemaking (“ANPR”) concerning mortgage assets affected by Property Assessed Clean Energy (“PACE”) programs and Notice of Intent (“NOI”) to prepare an environmental impact statement (“EIS”) under the National Environmental Policy Act (“NEPA”) to address the potential environmental impacts of FHFA's proposed action.
The United States District Court for the Northern District of California issued a preliminary injunction ordering FHFA “to proceed with the notice and comment process” in adopting guidance concerning mortgages that are or could be affected by PACE programs. Specifically, the California District Court ordered FHFA to “cause to be published in the
In response to and compliance with the California District Court's order, FHFA is seeking comment on whether the restrictions and conditions set forth in the July 6, 2010 Statement and the February 28, 2011 Directive should be maintained, changed, or eliminated, and whether other restrictions or conditions should be imposed. FHFA has appealed the California District Court's order to the U.S. Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). Inasmuch as the California District Court's order remains in effect pending the outcome of the appeal, FHFA is proceeding with the publication of this ANPR and NOI pursuant to that order. The Ninth Circuit has stayed, pending the outcome of FHFA's appeal, the portion of the California District Court's Order requiring publication of a final rule. FHFA reserves the right to withdraw this ANPR and NOI should FHFA prevail in its appeal, and may in that situation continue to address the financial risks FHFA believes PACE programs pose to safety and soundness through means other than notice-and-comment rulemaking.
Written comments must be received on or before March 26, 2012.
You may submit your comments, identified by regulatory information number (RIN) 2590-AA53, by any of the following methods:
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Alfred M. Pollard, General Counsel, (202) 649-3050 (not a toll-free number), Federal Housing Finance Agency, Eighth Floor, 400 Seventh Street SW., Washington, DC 20024. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339.
FHFA invites comments on all aspects of this ANPR and NOI. Commenters should identify by number, the question each of their comments addresses. Copies of all comments will be posted without change, including any personal information you provide, such as your name and address, on the FHFA Web site at
FHFA is an independent federal agency created by the Housing and Economic Recovery Act of 2008 (HERA) to supervise and regulate the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), (together, the Enterprises), and the Federal Home Loan Banks (the “Banks”). FHFA is the exclusive supervisory regulator of the Enterprises and the Banks. Both Enterprises are presently in conservatorship under the direction of FHFA as Conservator. 12 U.S.C. 4501
Fannie Mae and Freddie Mac operate in the secondary mortgage market. Accordingly, they do not directly lend funds to home purchasers, but instead buy mortgage loans from original lenders, thereby providing funds those entities can use to make additional loans. The Enterprises hold in their own portfolios a fraction of the mortgage loans they purchase. The Enterprises also securitize a substantial fraction of the mortgage loans they purchase, packaging them into pools and selling interests in the pools as mortgage-backed securities. Traditionally, the Enterprises guarantee nearly all of the mortgage loans they securitize. Together, the Enterprises own or guarantee more than $5 trillion in residential mortgages.
FHFA's “Director shall have general regulatory authority over each [Enterprise] * * *, and shall exercise such general regulatory authority * * * to ensure that the purposes of this Act, the authorizing statutes, and any other applicable law are carried out.” 12 U.S.C. 4511(b)(2). As regulator, FHFA is charged with ensuring that the Enterprises operate in a “safe and sound manner.” 12 U.S.C. 4513(a). FHFA is statutorily authorized “to exercise such incidental powers as may be necessary or appropriate to fulfill the duties and responsibilities of the Director in the supervision and regulation” of the Enterprises. 12 U.S.C. 4513(a)(2). FHFA's Director is authorized to “issue any regulations or guidelines or orders as necessary to carry out the duties of the Director * * *.”
HERA also authorizes the Director of FHFA to “appoint the Agency as conservator or receiver for a regulated entity * * * for the purpose of reorganizing, rehabilitating or winding up [its] affairs.”
In its role as Conservator, FHFA may take any action “necessary to put the regulated entity into sound and solvent condition” or “appropriate to carry on the business of the regulated entity and preserve and conserve the assets and property of the regulated entity.”
PACE programs provide a means of financing certain kinds of home-improvement projects. Specifically, PACE programs permit local governments to provide financing to property owners for the purchase of energy-related home-improvement projects, such as solar panels, insulation, energy-efficient windows, and other products. Homeowners repay the amount borrowed, with interest, over a period of years through “contractual assessments” added to their property tax bill. Over the last three years, more than 25 states have passed legislation authorizing local governments to set up PACE-type programs. Such legislation leaves most program implementation and standards to local governmental bodies and provides no uniform requirements or enforcement mechanisms.
In most, but not all, states that have implemented PACE programs, the liens that result from PACE program loans have priority over mortgages, including pre-existing first mortgages.
Typically, PACE programs serve as a channel through which private-sector capital flows through the local government to the homeowner-borrower (or the homeowner-borrower's contractors). While PACE programs vary in the particular mechanisms they use to raise capital, in many instances private investors provide the capital by purchasing bonds secured by the payments that homeowner-borrowers make on their PACE obligations. From the capital provider's perspective, one advantage of channeling the funding through a local government, rather than lending directly to the homeowner-borrower or channeling the funds through a private enterprise, is that the local government is able to use the property-tax assessment system as the vehicle for repayment. Because of the “lien-priming” feature of most PACE programs, the capital provider effectively “steps ahead” of all other private land-secured lenders (including mortgage lenders) in priority, thereby minimizing the financial risk to the capital provider while downgrading the priority of first and second mortgages, and of any other property-secured financial obligation.
Proponents of PACE programs have analogized the obligations to repay PACE loans to traditional tax assessments. However, unlike traditional tax assessments, PACE loans are voluntary—homeowners opt in, submit applications, and contract with the city or county's PACE program to obtain the loan. Each participating property owner controls the use of the funds, selects the contractor who will perform the energy retrofit, owns the energy retrofit fixtures and must repair the fixtures should they become inoperable, including during the time the PACE loan remains outstanding. Each locality sets its own terms and requirements for homeowner and project eligibility for PACE loans; no uniform national standards exist. Nothing in PACE requires that local governments adopt and implement nationally uniform financial underwriting standards, such as minimum total loan-to-value ratios that take into account either: (i) Total debt or other liens on the property; or (ii) the possibility of subsequent declines in the value of the property. Many PACE programs also do not employ standard personal creditworthiness requirements, such as limits on FICO score or total debt-to-income ratio, although some include narrower requirements, such as that the homeowner-borrower be current on the mortgage and property taxes and not have a recent bankruptcy history.
Some local PACE programs communicate to homeowners that incurring a PACE obligation may violate the terms of their mortgage documents.
State legislation authorizing PACE programs gained notoriety in 2008. As PACE programs were being considered by more states, FHFA began to evaluate their implementations and potential impact on the portfolios of FHFA-regulated entities. On June 18, 2009, FHFA issued a letter and background paper raising concerns about PACE programs that retroactively created first liens. To discuss the risks to lenders and the Enterprises as well as borrowers, FHFA met over the next year with PACE stakeholders, other federal agencies, and state and local authorities around the country.
On May 5, 2010, in response to continuing questions about PACE programs, Fannie Mae and Freddie Mac issued advisories (“Advisories”) to lenders and servicers of mortgages owned or guaranteed by the Enterprises.
Shortly after the May 5, 2010 Advisories were issued, FHFA received a number of inquiries seeking FHFA's position.
[T]he Federal Housing Finance Agency (FHFA) has determined that certain energy retrofit lending programs present significant safety and soundness concerns that must be addressed by Fannie Mae, Freddie Mac and the Federal Home Loan Banks. * * *
First liens established by PACE loans are unlike routine tax assessments and pose unusual and difficult risk management challenges for lenders, servicers and mortgage securities investors. * * *
They present significant risk to lenders and secondary market entities, may alter valuations for mortgage-backed securities and are not essential for successful programs to spur energy conservation.
On February 28, 2011, the Conservator issued a directive stating the Agency's view that PACE liens
Several parties brought legal challenges to the process by which FHFA issued the July 6, 2010 Statement and the February 28, 2011 Directive, as well as to their substance. The United States District Courts for the Northern District of Florida, the Southern District of New York, and the Eastern District of New York all dismissed lawsuits presenting such challenges. The United States District Court for the Northern District of California (the “California District Court”), however, has allowed such a lawsuit to proceed and has issued a preliminary injunction ordering FHFA “to proceed with the notice and comment process” in adopting guidance concerning mortgages that are or could be affected by PACE programs. Specifically, the California District Court ordered FHFA to “cause to be published in the
In response to and compliance with the California District Court's order, FHFA is seeking comment on whether the restrictions and conditions set forth in the July 6, 2010 Statement and the February 28, 2011 Directive should be maintained, changed, or eliminated, and whether other restrictions or conditions should be imposed. FHFA has appealed the California District Court's order to the U.S. Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). Inasmuch as the California District Court's order remains in effect pending the outcome of the appeal, FHFA is proceeding with the publication of this ANPR and NOI pursuant to that order. The Ninth Circuit has stayed, pending the outcome of FHFA's appeal, the portion of the California District Court's Order requiring publication of a final rule. FHFA reserves the right to withdraw this ANPR and NOI should FHFA prevail in its appeal, and may in that situation continue to address the financial risks FHFA believes PACE programs pose to safety and soundness through means other than notice-and-comment rulemaking.
This ANPR and NOI reviews FHFA's statutory authority as the federal supervisory regulator of the Enterprises, reviews FHFA's statutory role and authority as the Conservator of each Enterprise, summarizes issues relating to PACE that are relevant to FHFA's supervision and direction of the Enterprises, suggests subjects relating to PACE on which FHFA might issue a proposed rule or otherwise provide guidance to the Enterprises within the governing statutory framework, and invites comments from the public.
In light of the California District Court's order and the background information provided above, FHFA seeks comments on the following issues regarding the Enterprises' dealing in mortgages on properties that participate in PACE programs or that could participate in PACE programs.
The California District Court called upon FHFA to seek comments on whether conditions and restrictions relating to the regulated entities' dealing in mortgages on properties participating in PACE programs are necessary; and, if so, what specific conditions and/or restrictions may be appropriate. In the July 6, 2010 Statement and the February 28, 2011 Directive, FHFA imposed certain conditions and restrictions relating to the Enterprises' dealing in mortgages on properties participating in PACE programs. FHFA thus will take comments on whether those restrictions and conditions should be maintained, changed, or eliminated, and whether other restrictions or conditions should be imposed. Accordingly, FHFA requests comment on the following question:
FHFA is concerned that PACE programs that involve subordination of any mortgage holder's security interest in the underlying property to that of the provider of PACE financing may increase the financial risk borne by the Enterprises as holders of mortgages on properties subject to PACE obligations, as well as mortgage-backed securities based on such mortgages. FHFA believes that any such increase in the financial risk on mortgages and mortgage-backed securities already in the Enterprise portfolios, especially if imposed without Enterprise consent, may present significant safety and soundness concerns. In light of that concern, FHFA requests comment on the following three questions regarding financial risks to the Enterprises relating to the subordination of mortgage security interests to PACE liens:
• The total amount of debt secured by the subject property relative to the value of the subject property (
• The amount of funds available to pay for energy-related home-improvement projects after the subtraction of administrative fees or any other program expenses charged or
• The timing and nature of advancements in energy-efficiency technology;
• The timing and nature of changes in potential homebuyers' preferences regarding particular kinds of energy-efficiency projects;
• The timing, direction, and magnitude of changes in energy prices; and,
• The timing, direction, and magnitude of changes of property values, including the possibility of downward adjustments in value?
• The total amount of debt secured by the subject property relative to the value of the subject property (
• The amount of funds available to pay for energy-related home-improvement projects after the subtraction of administrative fees or any other programs expenses charged deducted before funds become available to pay for an actual PACE funded project (FHFA understands such fees and expenses can consume up to 10% or more of the funds a borrower could be obligated to repay under some PACE programs);
• The timing and nature of advancements in energy-efficiency technology;
• The timing and nature of changes in potential homebuyer preferences regarding particular kinds of energy-efficiency projects;
• The timing, direction, and magnitude of changes in energy prices; and,
• The timing, direction, and magnitude of changes of property values, including the possibility of downward adjustments in value?
FHFA is concerned that the risks first-lien PACE programs present to mortgage holders may be unnecessary or unreasonable in light of other market options for financing home-improvement projects relating to energy efficiency that do not subordinate mortgage holders' security interests. In light of that concern, FHFA requests comment on the following four questions relating to PACE programs and the market for home-improvement financing:
FHFA is concerned that PACE programs may not incorporate features that adequately protect the interests of the homeowner-borrower, and that the lack of adequate protection could result in homeowner-borrowers undertaking PACE projects or selecting PACE financing terms that increase the financial risks borne by mortgage holders such as the Enterprises. In light of that concern, FHFA requests comment on the following five questions relating to PACE and protections for the homeowner-borrower:
FHFA is concerned that first-lien PACE programs may not incorporate underwriting standards that adequately ensure that the homeowner-borrower will be able to repay the obligation, and that as a result homeowner-borrowers may undertake PACE projects, or select PACE financing terms, that adversely affect the homeowner-borrower's ability to repay other debt, including mortgage debt. In light of that concern, FHFA requests comment on the following three questions relating to PACE and underwriting standards:
FHFA intends to prepare an EIS to address the potential environmental impacts of any proposed rule that FHFA may issue following its consideration of the comments submitted in response to this ANPR and NOI. To that end, this ANPR and NOI initiates the NEPA scoping process to identify the environmental issues and reasonable alternatives to be examined in the EIS, and requests comments regarding those and other matters related to the scope of the EIS (“EIS Scoping Comments”).
To ensure that all relevant environmental issues and reasonable alternatives are addressed, FHFA invites and encourages EIS Scoping Comments. Interested parties are encouraged to submit their EIS Scoping Comments within a 60-day scoping period, which begins with publication of this notice. EIS Scoping Comments received after the end of the scoping period will be considered to the extent practicable. You may submit EIS Scoping Comments, identified by regulatory information number (RIN) 2590-AA53 and marked “EIS Scoping Comments,” by any of the methods identified in the
FHFA's Proposed Action would direct the Enterprises not to purchase any mortgage that is subject to a first-lien PACE obligation or that could become subject to first-lien PACE obligations without the consent of the mortgage holder. FHFA believes that the Proposed Action is reasonable and necessary to limit, in the interest of safety and soundness, the financial risks that could be involuntarily borne by the Enterprises, thereby preserving and conserving the Enterprises' assets and property while protecting American taxpayers from further loss.
As required by the Council on Environmental Quality regulations that implement NEPA, the EIS will analyze and present the potential environmental impacts associated with reasonable alternatives, including the No Action Alternative.
The No Action Alternative is to withdraw the July 6, 2010 Statement and the February 28, 2011 Directive. This would allow the Enterprises to purchase mortgage loans secured by properties with outstanding first-lien PACE and PACE-like obligations.
In addition to the Proposed Action and No Action alternatives described above, FHFA invites comments on reasonable alternatives that would reduce or avoid known or potential adverse environmental impacts associated with the proposed action while ensuring that the Enterprises operate in a safe and sound manner. Accordingly, FHFA requests that for each reasonable alternative suggested, the commenter explain the positive, neutral or negative environmental impacts, as well as potential changes in the level of financial risk borne by holders of any interest in a mortgage on PACE-affected properties, associated with the suggested alternative. Accordingly, FHFA specifically requests comment on the following question:
To facilitate the scoping process, FHFA has identified a preliminary approach and list of issues and environmental resources that it may consider in the EIS. This list is not intended to be all-inclusive or to predetermine the scope of the EIS, but is intended to serve as a starting point for public comment.
• FHFA intends to develop scenarios (high, medium, and low) that describe three potential levels of uptake of PACE program loans by homeowners (irrespective of the Agency's action). These scenarios would be developed at the regional level and would make assumptions on the types of home improvement projects (
• Potential effects of the Proposed Action and alternatives on the uptake of PACE home improvement projects will be considered. For each alternative analyzed in detail in the EIS, FHFA would estimate PACE project implementation for each of the scenarios listed above and then compare these estimates across the alternatives.
• Using assumptions on the types of home improvement projects that could be implemented, FHFA would estimate the potential energy and water consumption savings associated with each scenario at the regional level for each alternative.
• FHFA proposes to analyze the potential direct, indirect, and cumulative environmental impacts of
FHFA invites comments on all of the issues and questions discussed above, and will consider all comments in developing any proposed rule that FHFA may issue concerning the Enterprises' dealing in mortgages on properties participating in PACE programs. As to all questions enumerated above, commenters should provide supporting data and documentation for each of their responses, as these will assist FHFA in its consideration of comments.
Studies addressing relevant aspects of PACE programs may be submitted for the agency's consideration. FHFA is interested in studies analyzing:
• The effect of PACE-funded improvements on the value of the underlying property, including differential effects over time and across markets;
• The comparative costs of PACE programs with other means of financing such as home equity loans, refinance transactions, and leasing programs;
• Payback periods for projects eligible for PACE funding, considering costs, energy savings, and risks (including risk of changes in energy pricing or in the level of subsidies or tax credits available);
• The economic life of PACE-funded improvements, particularly in relation to the term of the PACE loan;
• Default rates of PACE and non-PACE loans based on populations with comparable borrower, loan and property characteristics; and
• Other subjects relating to PACE and the financial risks PACE programs pose to mortgage holders such as the Enterprises.
All study-related submissions should provide the complete study protocol; the date(s) the study was proposed, initiated, completed, and published or otherwise reported; all key assumptions; the sample size; the data; the results (including sensitivity of reported results to key assumptions); and any published report of the study. Study-related submissions should also identify the persons who developed, implemented, and published or otherwise reported the study, as well as the principal sources of funding for the study. All data should be provided in a reasonably accessible computer-readable format, such as Microsoft Excel files.
Internal Revenue Service (IRS), Treasury.
Withdrawal of notice of proposed rulemaking; notice of proposed rulemaking.
This document contains proposed regulations that provide information reporting rules for certain passport applicants. These regulations do not provide information reporting rules for individuals applying to become permanent residents (green card holders). This document also withdraws the notice of proposed rulemaking (57 FR 61373) published in the
Comments and requests for a public hearing must be received by April 25, 2012.
Send submissions to CC:PA:LPD:PR (REG-208274-86), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-208274-86), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Lynn Dayan or Quyen Huynh at (202) 622-3880; concerning submissions of comments and requests for public hearing, Oluwafunmilayo Taylor, (202) 622-7180 (not toll-free numbers).
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and, pending receipt and evaluation of public comments approved by the Office of Management and Budget under control number 1545-1359. Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by March 26, 2012. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the duties of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.
The collection of information in these proposed regulation is in § 301.6039E-1(b). The information is required to be provided by individuals who apply for a United States passport or a renewal of a United States passport. The information provided by passport applicants will be used by the IRS for tax compliance purposes.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains proposed amendments to 26 CFR part 301 under section 6039E of the Internal Revenue Code. Section 6039E provides rules concerning information reporting by U.S. passport and permanent resident applicants, and requires specified Federal agencies to provide certain information to the IRS.
On December 24, 1992, the Treasury Department and the IRS published a notice of proposed rulemaking (REG-208274-86, 1993-1 CB 822) in the
The information required to be provided by passport applicants under section 6039E is collected on the U.S. passport application form submitted by such applicants to the Department of State.
The proposed regulations also withdraw the 1992 proposed regulations.
The proposed regulations set forth rules concerning information reporting by passport applicants under section 6039E. Section 301.6039E-1(a) requires an individual applying for a U.S. passport (passport applicant), other than an individual who applies for an official passport, diplomatic passport or passport for use on other official U.S. government business, to provide certain information with his or her passport application.
Section 301.6039E-1(b)(1) describes the required information to be provided by passport applicants: The applicant's full name and, if applicable, previous name; address of regular or principal place of residence within the country of residence and, if different, mailing address; taxpayer identifying number (TIN); and date of birth. Section 301.6039E-1(b)(2) provides that the required information must be submitted with the passport application, regardless of where the applicant resides at the time it is submitted.
Section 301.6039E-1(c) provides guidance on the circumstances under which the IRS may impose a $500 penalty amount on any passport applicant who fails to provide the required information.
Section 301.6039E-1 is proposed to be applicable to passport applications submitted after the date of publication of the Treasury decision adopting these rules as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these regulations is Quyen P. Huynh of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Administrative practice and procedure, Alimony, Bankruptcy, Child support, Continental shelf, Courts, Crime, Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Investigations, Law enforcement, Oil pollution, Penalties, Pensions, Reporting and recordkeeping requirements, Seals and insignia, Statistics, Taxes.
Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking (INTL-978-86; REG-208274-86) that was published in the
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 301.6039E-1 also issued under 26 U.S.C. 6039E.
(a)
(b)
(i) The passport applicant's full name and, if applicable, previous name;
(ii) Address of the passport applicant's regular or principal place of residence within the country of residence and, if different, mailing address;
(iii) The passport applicant's taxpayer identifying number (TIN), if such a number has been issued to the passport applicant. A TIN means the individual's social security number (SSN) issued by the Social Security Administration. A passport applicant who does not have an SSN must enter zeros in the appropriate space on the passport application; and
(iv) The passport applicant's date of birth.
(2)
(c)
(2)
C, a citizen of the United States, makes an error in supplying information on his passport application. Based on the nature of the error and C's timely response to correct the error after being contacted by the IRS, and considering all the surrounding circumstances, the Commissioner concludes that the mistake is due to reasonable cause and not due to willful neglect. Accordingly, no penalty is assessed.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Illinois State Implementation Plan (SIP) addressing regional haze for the first implementation period. Illinois submitted its regional haze plan on June 24, 2011. The Illinois regional haze plan addresses Clean Air Act (CAA) section 169B and Regional Haze Rule requirements for states to remedy any existing and prevent future anthropogenic impairment of visibility at mandatory Class I areas. EPA is also proposing to approve two state rules and incorporating two permits into the SIP.
Comments must be received on or before February 27, 2012.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2011-0598, by one of the following methods:
1.
2.
3.
4.
5.
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
Regional haze is visibility impairment that is produced by a multitude of sources and activities located across a broad geographic area that emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all of the time at most national park and wilderness areas. The average visual range, the distance at which an object is barely discernable, in many Class I areas
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources known as, “reasonably attributable visibility impairment” (RAVI). 45 FR 80084. These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated the Regional Haze Rule (RHR) on July 1, 1999 (64 FR 35713). The RHR revised the existing visibility regulations to integrate into the regulations provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands.
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and Federal agencies. Pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, effectively addressing the problem of visibility impairment in Class I areas means that states need to develop coordinated strategies that take into account the effect of emissions from one jurisdiction on the air quality of another state.
EPA has encouraged the states and tribes to address visibility impairment from a regional perspective because the pollutants that lead to regional haze can originate from sources located across broad geographic areas. Five regional planning organizations (RPOs) were developed to address regional haze and
The Midwest RPO (MRPO) is a collaborative effort of state governments and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Midwest. The member states are Illinois, Indiana, Michigan, Ohio, and Wisconsin.
Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and must require those sources to install emission controls reducing visibility impairment if appropriate. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview
The deciview is used in expressing RPGs, defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution. The national goal is a return to natural conditions such that anthropogenic sources of air pollution would no longer impair visibility in Class I areas.
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437) and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submission and at the progress review every five years, midway through each 10-year implementation period. The RHR requires states with Class I areas (Class I states) to determine the degree of impairment in deciviews for the average of the 20 percent least impaired (best) and 20 percent most impaired (worst) visibility days over a specified time period at each of its Class I areas. Each state must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural, and current visibility conditions in documents titled, EPA's
For the first regional haze SIP, the “baseline visibility conditions” are the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent best days and 20 percent worst days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000 to 2004 baseline period is considered the time from which improvement in visibility is measured.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two distinct RPGs, one for the best days and one for the worst days for every Class I area for each approximately 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural visibility conditions. In setting RPGs, Class I states must provide for an improvement in visibility for the worst days over the approximately 10-year period of the SIP and ensure no degradation in visibility for the best days.
Class I states have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and, (4) the remaining useful life of any potentially affected sources. The state must demonstrate in its SIP how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain older large stationary sources to address visibility impacts from these sources. Specifically, CAA section 169A(b)(2)(A) requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the state. The set of “major stationary sources” potentially subject to BART is listed in CAA section 169A(g)(7). The state can require source-specific BART controls, but it also has the flexibility to adopt an alternative such as a trading program as long as the alternative provides greater progress towards improving visibility than BART.
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
States may select an exemption threshold value for their BART modeling under the BART Guidelines, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. The exemption threshold set by the state should not be higher than 0.5 dv. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual source's impact.
The state must identify potential BART sources in its SIP, described as “BART-eligible sources” in the RHR, and document its BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires the state to consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and, (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. The BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA's approval of the state's regional haze SIP. CAA section 169(g)(4); 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a long-term strategy (LTS) in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas within or affected by emissions from the state. 40 CFR 51.308(d)(3).
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to address interstate visibility issues sufficiently.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and, (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).
EPA revised 40 CFR 51.306(c) as part of the RHR regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment in accordance with 40 CFR 51.308(b) and (c). The state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze on or before this date. It must also submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTSs, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively.
Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through participation in the IMPROVE network, meaning that the state reviews and uses monitoring data from the network. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met. The monitoring strategy is due with the first regional haze SIP and must be reviewed every five years.
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside of the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states.
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible in electronic format;
• A statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year with available data, and future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements including reporting, recordkeeping, and other measures necessary to assess and report on visibility;
The RHR requires control strategies to cover an initial implementation period extending to the year 2018 with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with Federal Land Managers (FLMs) before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the RPGs and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.
Illinois submitted its regional haze plan on June 24, 2011, which included revisions to the Illinois SIP to address regional haze.
States are required to address regional haze affecting Class I areas within a state and in Class I areas outside the state that may be affected by the state's emissions. 40 CFR 51.308(d). Illinois does not have any Class I areas within the state. Illinois reviewed technical analyses conducted by MRPO to determine what Class I areas outside the state are affected by Illinois emission sources. MRPO conducted both a back trajectory analysis and modeling to determine the affects of its states' emissions. The conclusion from the technical analysis is that emissions from Illinois sources affect 19 Class I areas. The affected Class I areas are: Sipsey Wilderness Area in Alabama; Caney Creek and Upper Buffalo Wilderness Areas in Arkansas; Mammoth Cave in Kentucky; Acadia National Park and Moosehorn Wilderness Area in Maine; Isle Royale National Park and Seney Wilderness Area in Michigan; Boundary Waters Canoe Wilderness Area in Minnesota; Hercules-Glades and Mingo Wilderness Areas in Missouri; Great Gulf Wilderness Area in New Hampshire; Brigantine Wilderness Area in New Jersey; Great Smoky Mountains National Park in North Carolina and Tennessee; Lye Brook Wilderness Area in Vermont; James River Face Wilderness Area and Shenandoah National Park in Virginia; and, Dolly Sods/Otter Creek Wilderness Area in West Virginia.
The RHR requires states with Class I areas to calculate the baseline and natural conditions for their Class I areas. Because Illinois does not have any Class I areas, it was not required to address the requirements for calculating baseline and natural conditions.
Class I states must set RPGs that achieve reasonable progress toward achieving natural visibility conditions. Because Illinois does not have any Class I areas, it is not required to establish RPGs. Illinois consulted with affected Class I states to ensure that it achieves its share of the overall emission reductions necessary to achieve the RPGs of Class I areas that it impacts. Illinois's coordination with affected Class I states is discussed under Illinois Long Term Strategy, in Section IV. E.
Illinois included the MRPO technical support document (TSD) in its submission. In Section 5 of the TSD, MRPO assessed the reasonable progress for regional haze. It first assessed potential control measures using the four factors required to be considered by Class I states when selecting the RPGs: the cost of compliance, time needed, energy and non-air impacts, and remaining useful life of any potentially affected sources. The cost of compliance factor includes calculating the average cost effectiveness and can include costs to health and industry vitality as well as considering the different visibility effects of different pollutants. The time necessary for compliance factor considers whether control measures can be implemented by 2018. The third factor, energy and non-air quality impacts, considers additional energy consumed by or because of the control measure as well as effects due to waste
MRPO also assessed the visibility benefits of existing programs. MRPO considered existing on-highway mobile source, off-highway mobile source, area source, power plant, and other point source programs. MRPO also included reductions from the Clean Air Interstate Rule (CAIR) in its analysis, as well from rules adopted by Illinois and included in its regional haze SIP requiring the control of emissions from EGUs.
Illinois has a distinctive situation regarding CAIR, insofar as it has adopted state rules that require EGUs to control NO
States are required to submit an implementation plan containing emission limitations representing BART and schedules for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment in a Class I area, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions. 40 CFR 51.308(e).
Using the criteria in the BART Guidance at 40 CFR 51.308(e) and Appendix Y, Illinois first identified all of the BART-eligible sources and assessed whether the BART-eligible sources were subject to BART. Illinois initially identified 26 potential BART facilities—11 EGUs, four petroleum refineries, three chemical process plants, two Portland cement plants, two glass fiber processing plants, one lime plant, and one iron and steel plant. The state further analyzed these facilities to identify those sources subject to BART. Illinois relied on modeling conducted by MRPO using a modeling protocol MRPO developed. MRPO conferred with its states, EPA, and the FLMs in developing its BART modeling protocol. EPA guidance says that, “any threshold that you use for determining whether a source `contributes' to visibility impairment should not be higher than 0.5 dv.” The Guidelines affirm that states are free to use a lower threshold if the location of a large number of BART-eligible sources in proximity of a Class I area justifies this approach. Illinois used a contribution threshold of 0.5 dv for determining which sources warrant being subject to BART. Illinois concluded that the threshold of 0.5 dv was appropriate since its BART-eligible sources are located state-wide and no Class I areas are nearby causing Illinois to correctly conclude that a stricter contribution threshold is not justified. The modeled impact of these facilities indicated that 11 sources have at least 0.5 dv impact (98th percentile) and thus are subject to BART. The 11 sources determined to be subject to BART are nine EGUs and two petroleum refineries. The other 15 potential BART sources were determined not to be subject to BART because the analysis showed impacts well below the 0.5 dv contribution threshold.
The EGUs subject to BART are:
• Dynegy Midwest Generating—Baldwin Boilers 1, 2, and 3.
• Dominion Kincaid Generation—Boilers 1 and 2.
• Ameren Energy Generating—Coffeen Boilers CB-1 and CB-2.
• Ameren Energy Generating—E.D. Edwards Boilers 2 and 3.
• Ameren Energy Generating—Duck Creek Boiler 1.
• Midwest Generation—Powerton Boilers 51, 52, 61, and 62.
• Midwest Generation—Joliet Boilers 71, 72, 81, and 82.
• Midwest Generation—Will County Boiler 4.
• City Water, Light, and Power—Dallman Boiler 1 and 2.
• City Water, Light, and Power—Lakeside Boiler 8.
To address mercury emissions from EGUs, Illinois adopted Part 225 of Illinois's air pollution regulations, entitled “Control of Emissions from Large Combustion Sources.” In this rule, Illinois offered affected utilities two options, one of which imposes stringent limits on mercury emissions alone and the other of which mandates implementation of specific mercury control technology in conjunction with satisfaction of stringent emission limits for SO
The SO
EPA believes this degree of averaging is acceptable in this context. The limits that Illinois has imposed are sufficiently stringent that the companies have only limited latitude to over control at some facilities in trade for having elevated emissions at other facilities. The facilities owned by each company are sufficiently close to each other, relative to their distances from the nearest Class I areas, that modest shifts in emissions from one facility to another should have minimal impact on the combined impact on regional haze at the Class I areas. Furthermore, regional haze is evaluated across a considerable number of days,
Dynegy has five facilities with 10 units covered by MPS, including the three Dynegy Baldwin units that are subject to BART. Emission reductions required for seven other Dynegy units not subject to BART will allow it meet the MPS reduction requirements. MPS will reduce emissions from all Dynegy facilities by 23,831 tons per year (TPY) of NO
Ameren has seven facilities with 21 units covered by MPS. This includes the subject to BART units: Coffeen units 1 and 2, Duck Creek unit 1, and Edwards units 2 and 3. Ameren has installed selective catalytic reduction (SCR) for NO
Midwest Generating operates six facilities with 19 total units that must comply with CPS, including the Midwest Generation units subject to BART: Powerton units 51, 52, 61, and 62; Joliet units 71, 72, 81, and 82; and Will County unit 4. The four Powerton units currently have low NO
A state may opt to implement an alternate measure rather than requiring each subject to BART unit to install, operate, and maintain BART if it demonstrates that the alternate measure will achieve greater reasonable progress. The criteria for the assessment if an alternative measure demonstrates greater reasonable progress are provided in 40 CFR 51.308(e)(2). MPS will reduce emissions from both subject to BART and non-BART units at the Ameren and Dynegy facilities. Similarly, CPS will require emission reductions from Midwest Generation's subject to BART and non-BART units. Illinois elected to use MPS and CPS participation as alternative to requiring BART control on each of the Ameren, Dynegy, and Midwest Generation units subject to BART. Illinois stated that implementation of the MPS and CPS emission limits will provide much deeper NO
Three other EGUs, owned by two other utilities Dominion Energy and the City of Springfield's City Water, Light, and Power (CWLP), are not covered by MPS and CPS but have units subject to BART. CWLP is a smaller utility with a total generating capacity of less than 750 MW and Dominion Energy has only one electric generating facility in Illinois such that these utilities do not have the opportunities for multi-plant averaging of emission limits that the larger utilities have. Rather than adopting an alternative program to address the BART requirements for these two utilities, Illinois is requiring these utilities to meet the BART requirements for the units subject to BART and establish enforceable emission limits for SO
CWLP currently has SCRs and FGD on Dallman units 31 and 32. As of 2010, CWLP has been operating the SCRs to achieve an annual average NO
Dominion's Kincaid facility operates SCRs on its units 1 and 2. The permit for the Kincaid facility limits NO
Illinois issued the Joint Construction and Operating permits pursuant to its
Two petroleum refineries, the CITGO and Exxon Mobil refineries, also have units subject to BART: the CITGO refinery in Lemont, Illinois and the Exxon Mobil refinery south of Joliet, Illinois. Both refineries will be required to reduce emissions by a Federal consent decree resolving an enforcement action brought by EPA against a number of refineries. The consent decrees require the CITGO, Exxon Mobil, and the other refineries to operate controls at the Best Available Control Technology level. Illinois evaluated the subject-to-BART units at the CITGO and Exxon Mobil refineries. It found that the NO
A consent decree between the United States and CITGO Petroleum Corporation was entered in the U.S. District Court for the Southern District of Texas on October 6, 2004 (No. H-04-3883). The consent decree requires the company to operate SCR and a wet scrubbing system at its Fluid Catalytic Cracking Unit (FCCU) that will reduce NO
A consent decree between the United States and Exxon Mobil Corporation was entered in the U.S. District Court for the Northern District of Illinois on October 11, 2005 (No. O5-C-5809). The consent decree for Exxon Mobil requires SCR operation on its FCCU in addition to maintenance of the existing wet scrubbing system. The controls on the FCCU result in a 1,636.2 TPY decrease in NO
These two consent decrees are Federally enforceable and also require that the refineries submit permit applications to Illinois to incorporate the required emission limits into Federally enforceable air permits (other than Title V). Therefore, emission limits established by the consent decrees may be relied upon by Illinois for addressing the BART requirement for these facilities.
Based on modeling, MRPO determined that the visibility impact of directly emitted particulate matter from the facilities with subject to BART units is minimal. In particular, MRPO assessed the impact of the directly emitted particulate matter from all facilities potentially subject to BART in the five MRPO states, and found the impact to be less than 0.5 dv at any Class I area as compared to natural background conditions. Illinois therefore concludes that PM emissions from its subset of these BART sources have a negligible visibility impact. Furthermore, these facilities are already subject to federally enforceable PM emission control requirements mandated by SIP-approved state particulate matter regulations, so that there is minimal potential for further PM emission reductions. Therefore, based particularly on the substantial existing controls on these facilities- fabric filters, electrostatic precipitators, and cyclones; and the minimal benefits of further control, Illinois concluded that BART did not include further control of PM emissions from these facilities.
EPA is satisfied with the state's BART determinations. The emission limits that Illinois adopted generally will require state-of-the-art emission controls, not just at the units subject to BART requirements but also at numerous units that are not subject to BART. The Illinois facilities subject to BART are a long distance from any Class I area such that, so the geographical redistributions of emissions within Illinois do not significantly affect visibility and the benefits of alternate control strategies may be judged simply by comparing the net emission reductions. The MPS and CPS provide emission reduction well in excess of simply implementing BART on subject units. The reduction in NO
Illinois did not rely on the Clean Air Interstate Rule (CAIR) for its BART determinations. Illinois is in the CAIR region. However, it used its state rules, permits, and consent decrees to achieve emission reductions that satisfy BART. This means that Illinois is not reliant on CAIR and, thus, it has avoided the issues of other CAIR region states that relied on CAIR. For similar reasons, Illinois' satisfaction of regional haze rule requirements is not contingent on the Transport Rule and thus is not affected by the stay of that rule.
Under section 169A(b)(2) of the CAA and 40 CFR 51.308(d), states' regional haze programs must include an LTS for making reasonable progress toward meeting the national visibility goal. Illinois's LTS must address visibility improvement for the Class I areas impacted by Illinois sources. Section 51.308(d)(3) requires that Illinois consult with the affected states in order to develop a coordinated emission management strategy. A contributing state, such as Illinois, must demonstrate that it has included, in its SIP, all measures necessary to obtain its share of the emissions reductions needed to meet the RPGs for the Class I areas affected by Illinois sources. As described in section III.D. of this proposed rule, the LTS is the compilation of all control measures Illinois will use to meet applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas affected by Illinois emissions.
Illinois complied with the consulting requirements by participating in meetings and conference calls with affected Class I states and RPOs to discuss the states' assessments of visibility conditions, analyses of culpability, and possible measures that could be taken to meet visibility goals. Illinois engaged in extensive
Illinois's LTS includes the modeling and monitoring results on which it relied to determine its share of emission reductions necessary to meet the reasonable progress goals of impacted Class I areas. This information is provided in Chapter 9 of the Illinois regional haze plan. Portions of this technical work were provided by MRPO as it worked with other RPOs to provide this information on Class I areas outside the Midwest.
At 40 CFR 51.308(d)(3)(v), the RHR identifies seven factors that a state must consider in developing its LTS: (A) Emission reductions due to ongoing programs; (B) measures to mitigate impact from construction; (C) emission limits to achieve the RPG; (D) replacement and retirement of sources; (E) smoke management techniques; (F) Federally enforceable emission limits and control measures; and (G) the net effect on visibility due to projected emission changes over the LTS period. Illinois considered the seven factors in developing its LTS. Chapter 8 of the Illinois regional haze plan provides a full analysis of each factor.
Illinois relied on MRPO's modeling and analysis along with its emission information in developing a LTS. Illinois considered the factors set out in 51.308(d)(3)(v) in developing its LTS. Based on these factors and the MRPO's technical analysis, in conjunction with RPGs that were set by the pertinent Class I states in consultation with Illinois and other contributing states, Illinois concludes that existing control programs, together with the BART controls described above, address Illinois's impact on Class I areas. This is because the combination of the existing controls and the BART controls suffice to meet the impacted Class I areas' RPGs by 2018. These existing control programs include Federal motor vehicle emission control program, reformulated gasoline, emission limits for area sources of VOCs, Title IV, the NO
Illinois assessed all point sources in the state that emit at least 1,000 TPY of NO
Illinois maintains a monitoring network that provides data to analyze air quality problems including regional haze. Illinois's monitoring network includes State and Local Air Monitoring Sites (SLAMS), Special Purpose Monitors (SPM), Photochemical Assessment Monitoring Sites (PAMS), and PM
Illinois was required to consult with the FLMs under 40 CFR 51.308(i). Illinois consulted with the FLMs electronically and by telephone. The FLMs were also included in discussions with Illinois during MRPO conference calls and meetings. A draft regional haze plan was submitted for FLMs comments on August 6, 2009. Illinois then provided the FLMs a revised regional haze plan on October 7, 2010 for review. That provided the FLMs enough time to comment prior to the December 6, 2010, public hearing on the regional haze plan. Illinois has included comments from the FLMs in Attachment 9 to its regional haze plan, a document providing the comments Illinois received and its responses. The state has committed to consulting the FLMs on future SIP revisions and progress reports.
Illinois took comments on its proposed regional haze plan. It held a public hearing on December 6, 2010. The public comment period ended on January 5, 2011. Evidence of the public notice and evidence of the public hearing were submitted to EPA.
Illinois's submission includes a document, Attachment 9, which summarized the comments it received from both the FLMs and from the public and provides its responses to the comments. The state revised portions of its plan based on the comments to correct errors and clarify portions that caused confusion. Illinois responded to other comments without revising its plan. EPA concludes that Illinois has satisfied the requirements from 40 CFR Part 51, Appendix V to provide evidence that it gave public notice, took comments, and that it compiled and responded to comments.
EPA is proposing to approve revisions to the Illinois SIP, submitted on June 24, 2011, addressing regional haze for the first implementation period. The revisions address CAA and regional haze rule requirements for states to remedy any existing anthropogenic and prevent future impairment of visibility at Class I areas. EPA finds that Illinois has satisfied all the requirements and, thus, is proposing approval of the regional haze plan. EPA is also proposing to approve two state rules, MPS and CPS, and incorporating two permits, issued to City Water, Light, & Power and to Dominion Energy, into the SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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 in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this 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, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a limited approval of revisions to the Indiana State Implementation Plan (SIP) addressing regional haze for the first implementation period. Indiana submitted its regional haze plan on January 14, 2011, and supplemented it on March 10, 2011. The Indiana regional haze plan addresses the requirements of the Clean Air Act (CAA or Act) and Regional Haze Rule (RHR) requirements for states to remedy any existing and prevent future anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing a limited approval of these SIP revisions to implement the regional haze requirements for Indiana on the basis that the revisions, as a whole, strengthen the Indiana SIP. In a separate action, EPA has previously proposed a limited disapproval of the Indiana regional haze SIP because of the deficiencies in Indiana's regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) to EPA of the Clean Air Interstate Rule (CAIR). Consequently, we are not proposing to take action in this notice to address the state's reliance on CAIR to meet certain regional haze requirements.
Comments must be received on or before February 27, 2012.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2011-0080, by one of the following methods:
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Charles Hatten, Environmental Engineer, Control Strategy Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range, the distance at which an object is barely discernable, in many Class I areas
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I areas which impairment results from manmade air pollution.” On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources known as, “reasonably attributable visibility impairment” (RAVI). See 45 FR 80084. These regulations, codified at 40 CFR part 50, subpart P, represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze, the RHR, on July
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and various Federal agencies. Pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another state.
EPA has encouraged the states and tribes to address visibility impairment from a regional perspective because the pollutants that lead to regional haze can originate from sources located across broad geographic areas. Five regional planning organizations (RPOs) were developed to address regional haze and related issues in their geographical area. The five RPOs are the Mid-Atlantic and Northeastern Visibility Union (MANE-VU) for the Northeastern states, the Visibility Improvement State and Tribal Association of the Southeast (VISTAS), the Midwest Regional Planning Organization (MRPO), the Central Regional Air Planning Association (CENRAP), and Western Regional Air Partnership (WRAP). The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country and then pursued the development of regional strategies to reduce PM
The State of Indiana participated in the planning efforts of the MRPO. The MRPO is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues inside the borders of the five States of Illinois, Indiana, Michigan, Ohio, and Wisconsin. Members of MRPO include the five states, the Federal Land Managers (U.S. National Park Service, U.S. Fish & Wildlife Service, and U.S. Forest Service), and EPA.
Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies (LTS) for making reasonable progress toward meeting this goal. Plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install best available retrofit technology (BART) for the purpose of reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview
The deciview is used in expressing reasonable progress goals (RPGs), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution. The national goal is a return to natural conditions such that anthropogenic sources of air pollution would no longer impair visibility in Class I areas.
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437) and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP is submitted and at the progress review every five years, midway through each 10-year implementation period. The RHR requires states with Class I areas (Class I states) to determine the degree of impairment in deciview for the average of the 20 percent least impaired (best) and 20 percent most impaired (worst) visibility days over a specified time period at each of its Class I areas. Each state must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural, and current visibility conditions in documents titled, EPA's
For the first regional haze SIP, the “baseline visibility conditions” are the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent best days and 20 percent worst days for each calendar year from 2000 to 2004.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two distinct RPGs, one for the best days and one for the worst days for every Class I area for each approximately 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural visibility conditions. In setting RPGs, states must provide for an improvement in visibility for the worst days over the approximately 10-year period of the SIP and ensure no degradation in visibility for the best days.
States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. The state must demonstrate in its SIP how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain older large stationary sources to address visibility impacts from these sources. Specifically, CAA section 169A(b)(2)(A) requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. The exemption threshold set by the state should not be higher than 0.50 dv. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual source's impact.
The state must identify potential BART sources in its SIP, described as “BART-eligible sources” in the RHR, and document its BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires the state to consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. The BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the state's regional haze SIP. See CAA section 169(g)(4); 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.
The RHR also allows states to implement an alternative program in lieu of BART if desired so long as the alternative program can be demonstrated to achieve greater progress toward the national visibility goal than implementing BART controls. EPA made such a demonstration for CAIR under regulations issued in 2005 revising the regional haze program. 70 FR 39104 (July 6, 2005). EPA's regulations provide that states participating in the CAIR cap-and trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or which remain subject to the CAIR Federal Implementation Plan (FIP) in 40 CFR part 97 need not require affected BART-eligible EGUs to install, operate, and maintain BART for emissions of SO
CAIR was later found to be inconsistent with the requirements of the CAA and the rule was remanded to EPA. See
On December 30, 2011, EPA proposed to find that the trading programs in the Transport Rule would achieve greater reasonable progress towards the national goal than would be obtained by implementing BART for SO
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15-year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include an LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas within or affected by emissions from the state. 40 CFR 51.308(d)(3).
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to address interstate visibility issues sufficiently.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS. The seven factors are: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).
As part of the RHR, EPA revised 40 CFR 51.306(c), regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment in accordance with 40 CFR 51.308(b) and (c). The state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze on or before this date. It must also submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTSs, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI impairment and be submitted to EPA as a SIP revision.
40 CFR 51.308(d)(4) includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I areas within the state. The strategy must be coordinated with the monitoring strategy required in 40 CFR 51.305. Compliance with this requirement may be met through participation in the IMPROVE network, meaning that the state reviews and uses monitoring data from the network. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met. The monitoring strategy is due with the first regional haze SIP and it must be reviewed every five years.
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible in electronic format;
• A statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year with available data, and future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The RHR requires control strategies to cover an initial implementation period extending to the year 2018 with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of 40 CFR 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of 40 CFR 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with FLMs before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the RPGs and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.
Indiana submitted its regional haze plan on January 14, 2011, and supplemented it on March 10, 2011.
States are required to address regional haze affecting Class I areas within a state and in Class I areas outside the state that may be affected by that state's emissions. Indiana does not have any Class I areas within its borders, but has been identified as influencing the visibility impairment of Class I areas in other nearby states. Indiana is responsible for developing a regional haze SIP that addresses its visibility impairment on Class I areas it may affect describing its LTS, its role in the consultation processes, and how the SIP meets other elements in EPA's RHR. Since Indiana does not have any Class I areas within its borders, and has no sources that have been identified as causes of RAVI, however, Indiana is not required to address the following Regional Haze SIP elements: (1) Calculation of baseline and natural visibility conditions; (2) establishment of reasonable progress goals; (3) monitoring requirements, and (4) RAVI requirements.
Indiana reviewed technical analyses conducted by MRPO and other RPOs to determine what Class I areas are affected by Indiana's emissions. MPRO conducted both a back trajectory analysis and modeling to determine the affects of its states' emissions. Indiana also used assessments by MANE-VU, VISTAS, and a joint state assessment by Arkansas and Missouri, each of which identified states having non-de minimus impacts on specified Class I areas. The following are Class I areas identified as being affected by Indiana sources:
Appendix 1 of Indiana's Regional Haze SIP contains a list of these Class I areas for all the Midwest states, and the analyses performed to assess the impact from Indiana sources compiled by the MRPO. Class I areas outside the areas listed above were not analyzed further, as there were no significant impacts from Indiana sources shown. Further, no impacts were noted in the WRAP states.
The RHR requires Class I states to estimate the baseline, natural and current visibility conditions of those Class I areas. See 40 CFR 51.308(d)(2). There are no Class I areas within the State of Indiana. Therefore, this element does not apply to Indiana.
Class I states must set RPGs that achieve reasonable progress toward achieving natural visibility conditions. Indiana does not have any Class I areas, so it does not need to set any RPGs. 40 CFR 51.308(d)(1). The states with Class I areas took the lead in establishing RPGs. Indiana consulted with Class I states by participating in the discussions (meetings and conference calls) with MRPO and RPOs outside the Midwest to ensure it achieves its share of emission reductions as those Class I states determine RPGs. In Appendix 9c, of Indiana's Regional Haze SIP, the Lake Michigan Air Directors Consortium (LADCO) document “Reasonable Progress for Class I Areas in the Northern Midwest—Factor Analysis” (July 18, 2007), addresses factor analysis to establish RPG toward achieving natural visibility conditions in mandatory Class I areas. In addition, Appendix 9b of LADCO'S Technical Support Document “Regional Air Quality Analyses for Ozone, PM
Indiana began the BART rulemaking process in August 2006. Following its rulemaking, which included the notices of hearings and comments, Indiana adopted 326 Indiana Administrative Code (IAC), Article 26, Rule 1, Best Available Retrofit Technology, on October 3, 2007; it became effective February 22, 2008.
Indiana conducted a BART analysis using the criteria in the BART Guidance. Using available source emissions and construction date information, Indiana developed a list of 32 BART-eligible sources within the BART source categories by county.
Indiana then applied the results of the screening modeling conducted by the MRPO to determine which BART-eligible sources have significant impacts on any Class I area and thus warrant being subject to BART requirements. In accordance with EPA's recommendation Indiana defined “significant impact” as an impact of at least 0.5 deciviews. By this means, Indiana identified the following non-EGUs as subject to BART: Alcoa Inc., ESSROC Cement Corporation, SABIC Innovative Plastics (formerly GE Plastics), and Mittal Steel USA Inc.-Burns Harbor. Indiana did not consider EGUs in its analysis as it decided to rely on these sources' participation in the CAIR to address the BART requirements for SO
Indiana further analyzed the four non-EGU facilities to determine which sources are subject to BART. Additional more refined modeling analyses submitted for three of the four non-EGU sources (ESSROC Cement Corporation, SABIC Innovative Plastics, and Mittal Steel USA Inc.—Burns Harbor) showed that they did not contribute significantly to the visibility impairment at any Class I areas, so that these sources may be exempted from the BART requirement under the regional haze rule. Modeling of these facilities indicated that just one source, Alcoa of Warrick County, is subject to BART.
Indiana submitted a BART analysis, prepared by Alcoa, which analyzed BART and alternative BART control strategies. Before beginning the five factor case-by-case BART analysis, Alcoa performed a baseline visibility impact analysis for each of the years 2001-2003 using the CALPUFF model with emission rates based on the 24-hour average actual emissions from the highest emitting day. The initial screening model projected the highest visibility impact at Mammoth Cave National Park (MCNP). Other Class I areas screened included Mingo Wilderness Area, Sipsey Wilderness Area, Great Smoky Mountains National Park, Joyce Kilmer—Slick Rock Wilderness Area, Cohutta Wilderness Area, and Shining Rock Wilderness Area. The impact at MCNP exceeded 0.5 dv. Since the visibility impact was highest at MCNP, the BART analysis focused on the impact at MCNP.
Alcoa identified 18 ingot furnaces, three boilers (Boilers #2, #3, and 4), and five aluminum refining furnaces (Potlines 2-6) as meeting BART eligibility criteria. Boilers #2 and #3 are classified as industrial boilers. Boiler #4 is classified as an EGU, and, under Indiana's plan, is addressed by CAIR for SO
After proposing determinations of BART for its BART-subject units, Alcoa proposed an alternative strategy which compensates for less stringent limits at selected BART-subject units by imposing more restrictive limits at a non-BART-subject unit at the facility. In most respects, Indiana's SIP submittal reflects the BART determinations and the alternative strategy that Alcoa proposed. Tables 1 and 2 show summaries of the BART determinations and the alternative BART control strategy that Alcoa proposed.
As shown in Tables 1 and 2, Alcoa recommended that it be subject to an alternative set of control requirements in lieu of being required to implement BART at each BART-subject unit. This alternative would provide additional control of emissions from boiler #1 beyond that required in the baseline years, sufficient to compensate for allowing more SO
Indiana's submittal nominally follows Alcoa's recommendation. Nevertheless, Indiana's submittal does not change the SO
In any case, EPA does not agree that an increase in sulfur content of coke used in the potlines at Alcoa's Warrick County facility, as opposed to a decrease in the sulfur content and thus in the emissions from these units, represents BART at these units. Furthermore, neither the company nor the state has provided evidence that this relaxation of limits on SO
Viewing Indiana's plan in that manner, EPA is satisfied with Indiana's alternative strategy for Alcoa. Modeling conducted by Indiana shows that the alternative achieves greater visibility improvement than BART, equal to 75 percent more reduction in deciviews over the baseline. The alternative BART, though it achieves greater reductions in all pollutants (PM, SO
Under the CAA, BART is required for any BART-eligible source that emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any Class I area. Accordingly, for stationary sources meeting these criteria, states must address the BART requirement when they develop their Regional Haze SIPs. On November 3, 2010, the Indiana Air Pollution Control Board adopted as final Indiana BART Rule, 326 IAC 26-2, to establish BART emission limitations in order to comply with the RHR. Indiana's Regional Haze SIP includes a copy of rule 326 IAC Article 26-2 in Appendix 7.
As described in III. E of this action, the LTS is a compilation of state-specific control measures relied on by the state for achieving its RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas affected by Indiana emissions.
Indiana consulted with Class I states on the development of RPGs through its participation in MRPO. MRPO facilitated consultations with other Midwest states and with states in other regions through inter-RPO processes. By coordinating with the MRPO and other RPOs, Indiana has worked to ensure that its LTS provides sufficient emission reductions to mitigate impacts of sources from Indiana on affected Class I areas. Indiana believes that existing control programs will adequately address Indiana's impact on Class I areas. Thus, continued implementation of the control programs will satisfy the long-term strategy requirements.
MPRO considered existing on-highway mobile source, off-highway mobile source, area source, power plant, and other point source programs as the existing control programs in its analysis. Indiana included a technical support document (TSD) produced by MRPO in its submission that details the analysis. Overall, emissions from Indiana and the Midwest, as a whole, are reduced significantly over this time, illustrating that Indiana is making appropriate progress toward reducing emissions.
At 40 CFR 51.308(d)(3)(v), the RHR identifies seven factors that each state must consider in developing its LTS. The state must consider: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) Measures to mitigate impact from construction activities; (3) Emissions limitations and schedules for
Indiana relied on MPRO's modeling and analysis along with its emission information in developing a LTS. Indiana consulted with Class I states through its participation in MRPO. MRPO facilitated consultations with other Midwest states and with states in other regions through inter-RPO processes. Indiana considered the factors set out in 40 CFR 51.308(d)(3)(v) in developing its LTS. Based on these factors and the MRPO's technical analysis, in conjunction with RPGs that were set by the pertinent states in consultation with Indiana and other states, Indiana concludes that existing control programs adequately address Indiana's impact on Class I areas and suffice to meet their RPGs by 2018 by implementing the control programs already in place. These existing control programs include Federal motor vehicle emission control program, reformulated gasoline, emission limits for area sources of VOCs, Title IV, the NO
As noted in EPA's separate notice proposing revisions to the RHR (76 FR 82219, December 30, 2011), a number of states, including Indiana, fully consistent with EPA's regulations at the time, relied on the trading programs of CAIR to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals. In that notice, we proposed a limited disapproval of Indiana's long-term strategy based on its reliance on CAIR. Comments on that proposed determination may be directed to Docket ID No. EPA-HQ-OAR-2011-0729. We are proposing to find that the remaining elements of Indiana's long-term strategy meet the requirements of the RHR.
Indiana took comments on its proposed regional haze plan. It held a public hearing on January 11, 2011, which concluded the public comment period. As part of the consultation process, Indiana also received comments from the FLMs which were presented at Indiana's public hearing.
Indiana provided the comments it received and its responses with its plan. Indiana revised portions of its plan in response to comments received. EPA considers that Indiana has satisfied this requirement.
EPA is proposing a limited approval of revisions to the Indiana SIP submitted by IDEM on January 11, 2011, and March 10, 2011, addressing regional haze for the first implementation period. The revisions seek to address CAA and regional haze rule requirements for states to remedy any existing anthropogenic and prevent future impairment of visibility at Class I areas.
Indiana's plan satisfies a number of elements of the regional haze requirements. Indiana's plan identifies the Class I areas that the state's emissions affect. Indiana demonstrates that the state has consulted with other states as appropriate in establishing reasonable progress goals and identifying the reductions need in Indiana to meet those goals. Indiana's plan meets the requirement for BART for non-EGUs and for particulate matter emissions from EGUs. For these reasons, and for the SIP strengthening effect of Indiana's plan, EPA is proposing limited approval of Indiana's plan.
In addition to the above actions, EPA is proposing to approve regulation 326 IAC Article 26, Rule 2 into Indiana's SIP which incorporates BART emission limitations in order for sources to comply with EPA's Regional Haze Rule.
It should be noted that rule 326 IAC Article 26-2 contains an erroneous citation, citing limits in 326 IAC 7-4-10(a)(4) rather than 326 IAC 7-4-10(a)(3). EPA nevertheless finds the rule approvable for several reasons: (1) The pertinent limits are already an approved part of Indiana's SIP and are therefore already enforceable; (2) the State's intent is clear; and (3) Indiana intends to correct this referencing.
In a separate action, EPA has previously proposed a limited disapproval of the Indiana regional haze SIP because of deficiencies in the state's regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia (DC Circuit) to EPA of the Clean Air Interstate Rule (CAIR). 76 FR 82219, December 30, 2011. Consequently, we are not taking action in this notice to address the state's reliance on CAIR to meet certain regional haze requirements.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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 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, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, and Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing limited approval of a revision to the Pennsylvania State Implementation Plan (SIP) submitted by the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP) on December 20, 2010 that addresses regional haze for the first implementation period. This revision addresses the requirements of the Clean Air Act (CAA) and EPA's rules that require states to prevent any future, and remedy any existing, anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing a limited approval of this SIP revision to implement the regional haze requirements for Pennsylvania on the basis that the revisions, as a whole, strengthen the Pennsylvania SIP. EPA is also proposing to approve this revision as meeting the infrastructure requirements relating to visibility protection for the 1997 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) and the 1997 and 2006 fine particulate matter (PM
Comments must be received on or before February 27, 2012.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0002 by one of the following methods:
A.
B.
C.
D.
Melissa Linden, (215) 814-2096, or by email at
On December 20, 2010, the PADEP submitted a revision to its SIP to address regional haze for the first implementation period.
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), the RHR. The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section II of this notice. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands.
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The Mid-Atlantic Region Air Management Association (MARAMA), the Northeast States for Coordination Air Use Management (NESCAUM), and the Ozone Transport Commission (OTC) established the Mid-Atlantic/Northeast Visibility Union (MANE-VU) regional planning organization. MANE-VU is a collaborative effort of state governments,
Sections 110(a)(1) and 110(a)(2)(D)(i)(II) of the CAA require that within three years of promulgation of a National Ambient Air Quality Standard (NAAQS), a state must ensure that its SIP, among other requirements, “contains adequate provisions prohibiting any source or other types of emission activity within the State from emitting any air pollutant in amounts which will interfere with measures required to be included in the applicable implementation plan for any other State to protect visibility.” Similarly, section 110(a)(2)(J) requires that such SIP “meet the applicable requirements of part C of (Subchapter I) (relating to visibility protection).”
EPA's 2006 Guidance, entitled “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM
The regional haze program, as reflected in the RHR, recognizes the importance of addressing the long-range transport of pollutants for visibility and encourages states to work together to develop plans to address haze. The regulations explicitly require each state to address its “share” of the emission reductions needed to meet the reasonable progress goals for neighboring Class I areas. States working together through a regional planning process, are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors.
As a result of the regional planning efforts in the MANE-VU, all states in the MANE-VU region contributed information to a Technical Support Committee (TSC) which provides an analysis of the causes of haze, and the levels of contribution from all sources within each state to the visibility degradation of each Class I area. The MANE-VU states consulted in the development of reasonable progress goals, using the products of this technical consultation process to co-develop their reasonable progress goals for the MANE-VU Class I areas. The modeling done by MANE-VU relied on assumptions regarding emissions over the relevant planning period and embedded in these assumptions were anticipated emissions reductions in each of the states in MANE-VU, including reductions from BART and other measures to be adopted as part of the state's long term strategy for addressing regional haze. The reasonable progress goals in the regional haze SIPs that have been prepared by the states in the MANE-VU region are based, in part, on the emissions reductions from nearby states that were agreed on through the MANE-VU process.
Pennsylvania submitted a regional haze SIP on December 20, 2010, to address the requirements of the RHR. On December 7, 2007, Pennsylvania submitted its original 1997 8-Hour Ozone and PM
Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview as the principal metric or unit for expressing visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility expressed in deciviews is determined by using air quality measurements to estimate light extinction and then transforming the value of light
The deciview is used in expressing RPGs (which are interim visibility goals toward meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA's
For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two RPGs (
States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview.
In their SIPs, states must identify potential BART sources, described as “BART eligible sources” in the RHR, and document their BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP.
As noted above, the RHR allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART. Under regulations issued in 2005 revising the regional haze program, EPA made just such a demonstration for the Clean Air Interstate Rule (CAIR). 70 FR 39104, July 6, 2005. EPA's regulations provide that states participating in the CAIR cap and trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or which remain subject to the CAIR Federal Implementation Plan (FIP) in 40 CFR part 97, do not require affected BART eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state.
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address Reasonably Attributable Visibility Impairment; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS.
As noted in EPA's separate notice proposing revisions to the RHR (76 FR 82219, December 30, 2011) a number of states, including Pennsylvania, fully consistent with EPA's regulations at the time, relied on the trading programs of CAIR to satisfy the BART requirement
As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze, and the state must submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTS's, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI impairment and must be submitted to EPA as a SIP revision.
Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network,
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;
• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with FLMs before adopting and submitting their SIPs.
On December 20, 2010, PADEP submitted revisions to the Pennsylvania SIP to address regional haze as required by EPA's RHR.
Pennsylvania has no Class I areas within its borders, but has been identified as influencing the visibility impairment of all MANE-VU Class I areas (Brigantine Wilderness Area in New Jersey; Acadia National Park, Moosehorn Wilderness Area, and Roosevelt/Campobello International Park in Maine; Great Gulf Wilderness Area and Presidential Range/Dry River Wilderness Area in New Hampshire; Lye Brook Wilderness Area in Vermont; Dolly Sods Wilderness and Otter Creek Wilderness Area in West Virginia; and Shenandoah National Park and James River Face Wilderness Area in Virginia). Pennsylvania is responsible for developing a regional haze SIP that addresses these Class I areas, that describes its long-term emission strategy, its role in the consultation processes, and how the SIP meets the other requirements in EPA's regional haze regulations. However, since Pennsylvania has no Class I areas within its borders, Pennsylvania is not required to address the following regional haze SIP elements: (a) Calculation of baseline and natural visibility conditions, (b) establishment of reasonable progress goals, (c) monitoring requirements, and (d) RAVI requirements.
As described in section II. E of this action, the LTS is a compilation of state-specific control measures relied on by the state to obtain its share of emission reductions to support the RPGs established by Maine, New Hampshire, Vermont, and New Jersey, the Class I area states. Pennsylvania's LTS for the first implementation period addresses the emissions reductions from federal, state, and local controls that take effect in the Commonwealth from the baseline period starting in 2002 until 2018.
The LTS was developed by Pennsylvania, in coordination with MANE-VU, identifying the emissions units within Pennsylvania that likely have the largest impacts currently on visibility at the MANE-VU Class I areas, estimating emissions reductions for 2018, based on all controls required under federal and state regulations for the 2002-2018 period (including BART), and comparing projected visibility improvement with the uniform rate of progress for the MANE-VU Class I areas.
Pennsylvania's LTS includes measures needed to achieve its share of emissions reductions agreed upon through the consultation process with Class I area states and includes enforceable emissions limitations, compliance schedules, and other measures necessary to achieve the reasonable progress goals established by MANE-VU for the Class I areas.
The emissions inventory used in the regional haze technical analyses was developed by MARAMA for MANE-VU with assistance from Pennsylvania. The 2018 emissions inventory was developed by projecting 2002 emissions and assuming emissions growth due to projected increases in economic activity as well as applying reductions expected from federal and state regulations affecting the emissions of VOC and the visibility-impairing pollutants NO
MANE-VU developed emissions inventories for four inventory source classifications: (1) Stationary point sources, (2) area sources, (3) off-road mobile sources, and (4) on-road mobile sources. The New York Department of Environmental Conservation also developed an inventory of biogenic emissions for the entire MANE-VU region. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. Off-road mobile sources are equipment that can move but do not use the roadways. On-road mobile source emissions are automobiles, trucks, and motorcycles that use the roadway system. The emissions from these sources are estimated by vehicle type and road type. Biogenic sources are natural sources like trees, crops, grasses, and natural decay of plants. Stationary point sources emission data is tracked at the facility level. For all other source types emissions are summed on the county level.
There are many federal and state control programs being implemented that MANE-VU and Pennsylvania anticipate will reduce emissions between the baseline period and 2018. Emission reductions from these control programs were projected to achieve substantial visibility improvement by 2018 in the MANE-VU Class I areas. To assess emissions reductions from ongoing air pollution control programs, BART, and reasonable progress goals MANE-VU developed 2018 emissions projections called Best and Final. The emissions inventory provided by the Commonwealth of Pennsylvania for the Best and Final 2018 projections is based on adopted and enforceable requirements.
Pennsylvania also relied on emission reductions from various federal Maximum Achievable Control Technology (MACT) rules in the development of the 2018 emission inventory projections. These MACT rules include the combustion turbine and reciprocating internal combustion engines MACT, the industrial boiler and process heaters MACT and the 2, 4, 7, and 10 year MACT standards.
On July 30, 2007, the U.S. District Court of Appeals mandated the vacatur and remand of the Industrial Boiler MACT Rule.
MANE-VU performed modeling for the regional haze LTS for the 11 Mid-Atlantic and Northeast states and the District of Columbia. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. MANE-VU used the following modeling system:
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CMAQ modeling of regional haze in the MANE-VU region for 2002 and 2018 was carried out on a grid of 12x12 kilometer (km) cells that covers the 11 MANE-VU states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) and the District of Columbia and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36x36 km grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. MANE-VU conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1-December 31) as the best period of meteorology available for conducting the CMAQ modeling. The MANE-VU states modeling was developed consistent with EPA's
MANE-VU examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the LTS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. MANE-VU used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once MANE-VU determined the model performance to be acceptable, MANE-VU used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.
An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, MANE-VU developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days.
Regarding which pollutants are most significantly impacting visibility in the MANE-VU region, MANE-VU's contribution assessment, demonstrated
Since the Commonwealth of Pennsylvania does not have a Class I area, it is not required to establish RPGs. However, Pennsylvania has been identified as influencing the visibility impairment of MANE-VU Class I Areas; Dolly Sods Wilderness and Otter Creek Wilderness Area in West Virginia; and Shenandoah National Park and James River Face Wilderness Area in Virginia. As such, Pennsylvania participated in consultations to discuss the reasonable progress goals considered by Visibility Improvement State and Tribal Association of the Southeast (VISTAS) Class I area states, West Virginia and Virginia. West Virginia and Virginia wrote emails to Pennsylvania stating no additional reductions were needed from the Commonwealth to meet their RPGs.
Pennsylvania also identified additional EGUs that would be controlled to meet the reductions required in the MANE-VU Asks for the 167 stacks. These additional sources are listed in Table 4. Pennsylvania averaged the EGU emission reductions for the 15 identified stacks and an additional 6 EGU stacks to meet the 90 percent control needed. EPA agrees that Pennsylvania has met the MANE-VU “Ask” of 90 percent control on its share of the 167 stacks identified. EPA's analysis of Pennsylvania's averaging can be found in the TSD accompanying this rulemaking.
On September 25, 2010, the Pennsylvania Environmental Quality Board (EQB) proposed the Commonwealth's statewide low-sulfur heating and distillate oil regulation, in response to the MANE-VU “Ask” that states adopt a low-sulfur fuel oil strategy. The Commonwealth has not finalized this strategy at the time of this proposal. However, following Pennsylvania's SIP submittal on December 20, 2010, additional point sources have become subject to federally enforceable SO
BART is an element of Pennsylvania's LTS. The BART regional haze requirement consists of three components: (a) Identification of all the BART eligible sources; (b) an assessment of whether the BART eligible sources are subject to BART; and (c) the determination of the BART controls.
The first component of a BART evaluation is to identify all the BART eligible sources. The BART eligible sources were identified by utilizing the criteria in the BART Guidelines as follows:
• Determine whether one or more emissions units at the facility fit within one of the 26 categories listed in the BART Guidelines (70 FR 39158-39159);
• Determine whether the emission unit(s) was in existence on August 7, 1977 and begun operation after August 6, 1962;
• Determine whether potential emissions of SO
The BART Guidelines recommend addressing SO
The second component of the BART evaluation is to identify those BART eligible sources that may reasonably be anticipated to cause or contribute to visibility impairment at any Class I area are subject to BART. As discussed in the BART Guidelines, a state may choose to consider all BART eligible sources to be subject to BART (70 FR 39161). Consistent with the MANE-VU Board's decision in June 2004 that because of the collective importance of BART sources, BART determinations should be made by the MANE-VU states for each BART eligible source. Pennsylvania identified each of its BART eligible sources as subject to BART.
The final component of a BART evaluation is making BART determinations for all BART subject sources. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. Section (e)(2) of the RHR provides that a state may opt to implement an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and maintain BART. To do so, the state must demonstrate that the emissions trading program or other alternative measure will achieve greater reasonable progress than would be achieved through the installation and operation of BART. The 34 sources in Pennsylvania that the Commonwealth found to be subject to BART are discussed below in Table 7. For the EGUs, Pennsylvania relied on CAIR to satisfy the BART requirements for SO
EPA agrees with PADEP's analyses and conclusions for the BART emission units located in Table 7 above. EPA has reviewed the Pennsylvania analyses and concluded they were conducted in a manner that is consistent with EPA's BART Guidelines. EPA has determined that Pennsylvania's submittals meet the requirements of section 169A(g)(2) of the CAA to consider available technology, the cost of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. Therefore, the conclusions reflect a reasonable application of EPA's guidance to these sources. EPA's analysis of these BART determinations can be found in the accompanying TSD for this rulemaking. The BART determinations for each of the facilities discussed above and the resulting BART emission limits were adopted by Pennsylvania into its regional haze SIP. PADEP incorporated the BART emission limits into Title V permits. The BART units in Pennsylvania are required to comply with these emission limits no later than five years after publication in the
On May 10, 2006, the MANE-VU State Air Directors adopted the Inter-RPO State/Tribal and FLM Consultation Framework that documented the consultation process within the context of regional haze planning, and was intended to create greater certainty and understanding among RPOs. MANE-VU states held ten consultation meetings and/or conference calls from March 1, 2007 through March 21, 2008. In addition to MANE-VU members attending these meetings and conference calls, participants from VISTAS, Midwest RPO, and the relevant Federal Land Managers were also in attendance. In addition to the conference calls and meeting, the FLMs were given the opportunity to review and comment on each of the technical documents developed by MANE-VU.
Pennsylvania submitted a draft regional haze SIP to the relevant FLMs for review and comment pursuant to 40 CFR 51.308(i)(2). The FLM provided comments on the draft regional haze SIP in accordance with 40 CFR 51.308(i)(3). The comments received from the FLMs were addressed and incorporated in Pennsylvania's SIP revision. The FLM's comments and PADEP's responses can be found in Appendix AA of the Pennsylvania submittal. The PADEP provided public notice of the opportunity to comment on the SIP revision and provided public notice of public hearing on October 9, 2010. The PADEP did not receive any comments during the public comment period. Pennsylvania commits in their SIP to ongoing consultation with the FLMs on Regional Haze issues throughout the implementation.
Consistent with the requirements of 40 CFR 51.308(g), Pennsylvania has committed to submitting a report on reasonable progress (in the form of a SIP revision) to the EPA every five years following the initial submittal of its regional haze SIP. The reasonable progress report will evaluate the progress made towards the RPGs for the MANE-VU Class I areas influenced by Pennsylvania.
EPA is proposing a limited approval of the revision to the Pennsylvania SIP submitted by the Commonwealth of Pennsylvania through the PADEP on December 20, 2010 as meeting some of the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-308, as described previously in this action. Accordingly, EPA is proposing to find that this revision meets the applicable visibility related requirements of CAA section 110(a)(2) including but not limited to 110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed limited approval of Pennsylvania's Regional Haze Plan 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, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Visibility, Volatile organic compounds.
42 U.S.C. 7401
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC;
Comments regarding these information collections are best assured of having their full effect if received by February 27, 2012. Copies of the submission(s) may be obtained by calling (202) 720-8681.
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Rural Housing Service, USDA.
Announcement of meetings.
This Notice announces a series of teleconferences and/or Web conference meetings regarding the USDA Multi-Family Housing Program. The teleconference and/or Web conference meetings will be scheduled on a quarterly basis, but may be held monthly at the Agency's discretion. This Notice also outlines suggested discussion topics for the meetings and is intended to notify the general public of their opportunity to participate in the teleconference and/or Web conference meetings.
Teleconference and/or Web conference meetings are scheduled to occur during the months of January, April, July, and October of 2012. The dates and times for the teleconference and/or Web conference meetings will be announced via e-mail to parties registered as described below.
Any member of the public wishing to register for the meetings and obtain the call-in number, access code, Web link and other information for any of the public teleconference and/or Web conference meetings may contact Timothy James, Loan and Finance Analyst, Multi-Family Housing, (202) 720-1094, fax at (202) 720-0302, or email address
The objectives of this series of teleconferences are as follows:
Topics to be discussed could include, but will not be limited to, the following:
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, Fax number (202) 395-7285 or via the Internet at
Office of the Secretary, Commerce.
General Notice Announcing Population Estimates.
This notice announces the voting age population estimates as of July 1, 2011, for each state and the District of Columbia. We are providing this notice in accordance with the 1976 amendment to the Federal Election Campaign Act, Title 2, United States Code, Section 441a(e).
Enrique Lamas, Chief, Population Division, U.S. Census Bureau, Room HQ-5H174, Washington, DC 20233, at (301) 763-2071.
Under the requirements of the 1976 amendment to the Federal Election Campaign Act, Title 2, United States Code, Section 441a(e), I hereby give notice that the estimates of the voting age population for July 1, 2011, for each state and the District of Columbia are as shown in the following table.
U.S. Census Bureau, Department of Commerce.
Notice of Amendment, Privacy Act System of Records: COMMERCE/CENSUS-6, Population Census Records for 1910 and All Subsequent Decennial Censuses.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals,” the Department of Commerce is issuing notice of intent to amend the system of
Please address comments to: Chief Privacy Officer, Room 8H115, U.S. Census Bureau, Washington, DC 20233-3700.
The Decennial Census of Population and Housing is one of the few Federal activities for which authority rests in the Constitution (Article 1, Section 2). Decennial census data collection processes touch the lives of every person in the United States. Decennial census data products provide the basis for apportioning among the states the seats in the U.S. House of Representatives, for developing the districts that members of Congress, state legislators, and other elected individuals represent, for the distribution of billions of dollars each year to governmental entities at all levels, and for untold numbers of governmental and business decisions. Decennial census records may also be used by respondents, their heirs, or legal representatives for proof of age, citizenship, proof of relationship, and limited use for genealogical purposes. The first change updates the safeguards to comprehensively cover the safeguards provided at the U.S. Census Bureau. The second change updates the system manager and corresponding address. Additionally, this amendment provides minor administrative updates to record source categories and exemptions claimed for the system. The entire resulting system of records notice, as amended, appears below.
COMMERCE/CENSUS-6, Population Census Records for 1910 and All Subsequent Decennial Censuses.
None.
U.S. Census Bureau, National Processing Center, 1201 East 10th Street, Jeffersonville, IN 47132.
All persons ever counted during decennial censuses of population (1910 and all subsequent decennial censuses).
The categories of records contain records with direct identifiers (i.e., name) such as: household information: Name, address, relationship to head of household; demographic information: age (at time of census) or month/year (depending on census year), marital status, occupation and limited education data, race of household members, and other similar characteristics as reported in each census.
Title 13, U.S.C. 8.
The purpose of this system is to search the 1910 and all subsequent decennial census records. Official census transcripts of the results are provided to the named person(s), their heirs, or legal representatives, upon receipt of a signed Application for Search of Census Records (Form BC-600). Census transcripts provide proof of age for Social Security or other retirement benefits. They can also be used in making passport applications, to prove relationship in settling estates, in limited genealogy research, or to satisfy other situations where a birth certificate or other legal documentation is needed but is not available. These records may be considered as statistical records pursuant to 5 U.S.C. 552(a), as they were originally collected for statistical purposes, and are now maintained to perform searches at the request of subject individuals under procedures published in the 15 CFR part 50 and in accordance with 13 U.S.C. 8 to provide proof of age, citizenship, proof of relationship, and limited use for genealogical purposes.
None.
None.
Records are stored in a computerized environment, paper, microform, and electronic media. Paper copies, digital media, and electronic media that contain sensitive information are stored in secure facilities within a locked drawer or cabinet, or in secure storage facilities with 24-hour monitoring. Records may also be stored in a highly restricted secure computerized environment with a customized level of authentication and access control.
A limited number of sworn U.S. Census Bureau staff will be permitted to retrieve individual records. Some census records are indexed by the SOUNDEX system—a numerical coding of the surname. The majority of census records are arranged on a geographic basis where the address must be known to determine which roll, microfilm, or electronic media that contains the name(s) for which a search is requested.
The U.S. Census Bureau is committed to respecting respondent privacy and confidentiality. Through the Data Stewardship Program, we have implemented management, operational, and technical controls and practices to ensure high-level data protection to respondents of our censuses and surveys: (1) An unauthorized browsing policy protects respondent information from casual or inappropriate use by any person with access to Title 13 protected data. (2) All employees permitted to access the system are subject to the restriction, penalties, and prohibitions of 13 U.S.C. 9 and 214 as modified by Title 18 U.S.C. 3551,
Records are retained indefinitely. Records are stored at the Census Bureau's National Processing Center in Jeffersonville, Indiana, and also are provided to the National Archives and Records Administration for permanent retention. Records stored at the National Archives and Records Administration are not made public for 72 years.
Associate Director for Field Operations, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-8000.
None.
None.
None.
Individuals covered by U.S. Census Bureau decennial censuses.
Pursuant to 5 U.S.C. 552a(k)(4) this system of records is exempt from the notification, access, and contest requirements of the agency procedures (under 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)). This exemption is applicable as the data are maintained by the U.S. Census Bureau and required by Title 13 to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable individual. This exemption is made in accordance with the Department's rules, which appear in 15 CFR part 4, subpart B, and in accordance with agency rules published in the rules section of this
U.S. Census Bureau, Department of Commerce.
Notice of Amendment, Privacy Act System of Records; COMMERCE/CENSUS-3, Individual and Household Statistical Surveys and Special Studies Records.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals,” the Department of Commerce is issuing notice of intent to amend the system of records COMMERCE/CENSUS-3, Individual and Household Statistical Surveys and Special Studies Records. This amendment would change the name of the system of records to “Special Censuses, Surveys, and Other Studies;” amend certain provisions concerning the purpose of the system of records; update categories of individuals and records covered by the system; change procedures governing retrieval, storage, retention, disposal, and safeguards of the records in the system; and make other minor administrative updates. Accordingly, the system notice for COMMERCE/CENSUS-3, Individual and Household Statistical Surveys and Special Studies Records published in the
Please address comments to: Chief Privacy Officer, Room 8H115, U.S. Census Bureau, Washington, DC 20233-3700.
This update makes four program-related changes. The first of four proposed changes to program-related provisions updates the purpose of the system of records to include collection of statistical data from respondents, as well as the methodological research previously included in the original System of Record Notice (SORN). This update is a result of a re-alignment of the Census Bureau's systems of records to separate Census Bureau surveys protected by Title 13 confidentiality provisions from reimbursable surveys not protected by Title 13 confidentiality provisions. Census Bureau surveys protected by Title 13 confidentiality are now covered in this system of records, and reimbursable surveys are covered in COMMERCE/Census-7, “Other Agency Surveys and Reimbursables.” The second proposed change updates the categories of individuals in the system to include administrative records and cognitive interviews. The third change updates the categories of records in the system to provide additional information and details surrounding the records. The last change updates the policies and practices for storing, retaining, disposing, and safeguarding the records in the system to include recordings of survey and cognitive interviews and comprehensively cover the safeguards provided at the U.S. Census Bureau. The entire resulting system of records notice, as amended, appears below.
Special Censuses, Surveys, and Other Studies.
Bowie Computer Center, U.S. Census Bureau, 17101 Melford Blvd., Bowie, Maryland 20715, and U.S. Census Bureau, National Processing Center, 1201 East 10th Street, Jeffersonville, Indiana 47103; and National Archives and Records Administration, Washington National Records Center, Washington, DC 20409.
This system covers the population of the United States. Survey respondents typically are individuals aged 15 years old or over. Data collected directly from respondents may be supplemented with data from administrative record files received from other federal, state, or
Records in this system of records consist of working statistical files (
Title 13 U.S.C. 8(b), 182, and 196 provide the authority for the U.S. Census Bureau to conduct statistical surveys.
The purpose of this system of records is to collect statistical information from respondents through survey instruments or other means and to conduct methodological research on improving various aspects of surveys authorized by Title 13, U.S.C. 8(b), 182, and 196, such as: survey sampling frame design; sample selection algorithms; questionnaire development, design, and testing; usability testing of computer software and equipment; post data collection processing; data quality review; and non-response research.
None. The data will be used only for statistical purposes. No disclosures which permit the identification of individual respondents, and no determinations affecting individual respondents are made.
None.
Records (including, but not limited to, sound files of survey or cognitive interviews or electronic datasets) will be stored in a secure computerized system and on magnetic media; output data will be electronic files or paper copies. Paper copies or magnetic media will be stored in a secure area within a locked drawer or cabinet. Data sets may be accessed only by authorized personnel. Control lists will be used to limit access to those employees with a need to know; rights will be granted based on job functions.
A limited number of sworn U.S. Census Bureau staff will be permitted to retrieve records containing direct identifiers (such as a name or SSN). Staff producing final statistical products will have access only to data sets from which direct identifiers have been deleted and replaced by unique non-identifying codes internal to the U.S. Census Bureau.
The U.S. Census Bureau is committed to respecting respondent privacy and protecting confidentiality. Through the Data Stewardship Program, we have implemented management, operational, and technical controls and practices to ensure high-level data protection to respondents of our census and surveys. (1) An unauthorized browsing policy
Records are to be retained in accordance with the General Records Schedule and U.S. Census Bureau's records control schedules that are approved by the National Archives and Records Administration. Generally, records are retained for less than 10 years, unless a longer period is necessary for statistical purposes or for permanent archival retention.
Associate Director for Demographic Programs, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-8000.
None.
None.
None.
Individuals and populations covered by selected administrative records systems and U.S. Census Bureau surveys and special censuses.
Pursuant to Title 5 U.S.C. 552a(k)(4), this system of records is exempted from the notification, access, and contest requirements of the agency procedures (under 5 Title U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)). This exemption is applicable as the data are maintained by the U.S. Census Bureau and required by Title 13 to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable individual. This exemption is made in accordance with the Department's rules, which appear in 15 CFR part 4 subpart B, and in accordance with agency rules published in the rules section of this
U.S. Census Bureau, Department of Commerce.
Notice of Amendment, Privacy Act System of Records; COMMERCE/CENSUS-4, Minority-Owned Business Enterprises Survey Records.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals”, the Department of Commerce is issuing notice of intent to amend the system of records entitled COMMERCE/CENSUS-4, “Minority-Owned Business Enterprises Survey Records.” This amendment would change the name of the system of records to “Economic Survey Collection;” would amend certain provisions concerning the purpose of the system of the records, categories of records covered by the system, routine uses of records maintained in the system, retrievability, and safeguards of records in the systems; and would make other minor administrative updates. Accordingly, the COMMERCE/CENSUS-4, Minority-Owned Business Enterprises Survey Records notice published in the
Comment Date: To be considered, written comments on the proposed amended system must be submitted on or before February 27, 2012.
Effective Date: Unless comments dictate otherwise, the amended system of records will become effective as proposed on the date of publication of a subsequent notice in the
Please address comments to: Chief Privacy Officer, Room 8H115, U.S. Census Bureau, Washington, DC 20233-3700.
This update makes five program-related changes. The first of five proposed changes updates the name and purpose of the system of records to expand the scope to include all economic programs, as well as surveys, such as the Survey of Business Owners and Survey of Construction. This update is a result of a System of Records Notice (SORN) re-alignment to cover all economic censuses and surveys authorized by, and kept confidential in accordance with Title 13; this SORN also includes government and building permit economic surveys that utilize public data sources, and, therefore, are not kept confidential in accordance with Title 13. The second proposed change updates the categories of individuals in the system to include the universe of small business owners in the U.S., as well as individuals engaged in business activity. The third proposed change updates the categories of records in the system to include selected administrative records from other federal, state, and local government agencies, or commercial sources,
COMMERCE/CENSUS-4, Economic Survey Collection
None.
The U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233; U.S. Census Bureau, Bowie Computer Center, 17101 Melford Boulevard, Bowie, Maryland 20715; and U.S. Census Bureau, National Processing Center, 1201 East 10th Street, Jeffersonville, Indiana 47132.
This system covers individuals operating a business, data on individuals from federal, state and local governments, and businesses in the United States. Data collected directly from respondents may be supplemented with data from administrative record files received from other federal, state, or local agencies, or commercial sources. Most of these files are collected and processed under the Statistical Administrative Records System. Administrative record files are from agencies including, the Departments of Agriculture, Education, Health and Human Services, Homeland Security, Housing and Urban Development, Labor, Treasury, Veterans Affairs, and from the Office of Personnel Management, the Social Security Administration, the Selective Service System, and the U.S. Postal Service. Comparable data may also be sought from State agencies and commercial sources. Please see the COMMERCE/CENSUS-8, Statistical Administrative Records System SORN for more information.
Records in this system of records consist of working statistical files (
13 U.S.C., Chapter 5, 8(b), 131, 132, and 182.
The economic survey collections covered by this system of records produce a wide-range of products for data users, including compilations of administrative records and survey-collected data, and numerous research and technical studies. For example, the U.S. Census Bureau's non-employer statistics program provides national and sub-national summary information on more than 20 million businesses without paid employees. The economic programs also combine data for non-employer and employer businesses in order to provide a complete picture of the Nation's economic activity. One example survey is, the Survey of Business Owners and Self-Employed Persons (SBO), which provides comprehensive information on demographic and economic characteristics of businesses and business owners. Another example survey is the Survey of Construction (SOC), which tracks a sample of builders from county building permit offices, to gauge the amount of residential construction by geographic area. Additionally, the economic programs provide data on the structure, function, finances, taxation, employment, and retirement systems within the United State's federal, state and local governments. A related purpose is to conduct research on the methodology associated with various aspects of surveys, such as data quality checks and review during post data collection processing. An other purposes of the system of records for economic collections include the integration of non-employer and employer records to form a comprehensive business universe file for subsequent analysis.
(1) Building permit data is compiled from public use data, and, therefore, is not subject to confidentiality restrictions; and may be released to other agencies or individuals.
(2) Economic data related to government operations that are publicly available may be released and used by other federal agencies, state and local legislators, researchers, businesses, and individuals.
None.
Records will be stored in a secure computerized system and on electronic or magnetic media; output data will be either electronic or paper copies. Paper copies and magnetic media will be stored in a secure area within a locked drawer or cabinet. Data sets may be accessed only by authorized personnel. Control lists will be used to limit access to those employees with a need to know; rights will be granted based on job functions. For data that do not require confidentiality protections, security controls are not applied.
A limited number of sworn U.S. Census Bureau staff will be permitted to retrieve records containing direct identifiers (SSN). Staff producing final statistical products will have access only to data sets from which direct identifiers have been deleted and replaced by unique non-identifying codes internal to the Census Bureau. In those cases, information may be retrieved by the unique non-identifying code, name of the business owner, demographic characteristics, or economic characteristics.
The U.S. Census Bureau is committed to respecting respondent privacy and protecting confidentiality. Through the Data Stewardship Program, we have implemented management, operational, and technical controls and practices to ensure high-level data protection to respondents of our census and surveys. (1) An unauthorized browsing policy protects respondent information from casual or inappropriate use by any person with access to Title 13 protected data. (2) All employees permitted to access the system are subject to the restriction, penalties, and prohibitions of 13 U.S.C. 9 and 214, as modified by Title 18 U.S.C. 3551,
Records are to be retained in accordance with the General Records Schedules and U.S. Census Bureau's records control schedules that are approved by the National Archives and Records Administration. Records are retained in accordance with agreements developed with entities who provide the data. Federal tax information administrative record data will be retained and disposed of in accordance with Publication 1075,
Associate Director for Economic Programs, Room 8H132-North Building, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-8100.
None.
None.
None.
Individuals, state and local governments, and businesses covered by economic censuses and surveys and selected administrative record systems.
Pursuant to Title 5 U.S.C. 552a(k)(4), this system of records is exempted from the notification, access, and contest requirements of the agency procedures (under Title 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)). This exemption is applicable as the data are maintained by the U.S. Census Bureau and required by Title 13 to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable individual. This exemption is made in accordance with the Department's rules which appear in 15 CFR part 4 subpart B and in accordance with agency rules published in the rules section of this
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Port of Portland, grantee of FTZ 45, requesting an expansion of the scope of manufacturing authority approved within Subzone 45F, on behalf of Epson Portland, Inc. (EPI), Hillsboro, Oregon. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on January 19, 2012.
Subzone 45F was approved by the Board in 2005 at the EPI plant (16.6 acres) located at 3950 NW Aloclek Place, Hillsboro, Oregon (Board Order 1406, 70 FR 55106, 9/20/2005). Activity at the facility (450 employees) includes manufacturing (injection molding, assembly, finishing), warehousing and distribution of inkjet printer cartridges.
The current request involves the production of ink for inkjet printer cartridges using foreign and domestic inputs, activity which the applicant is now requesting to conduct under zone procedures. Current production capacity is 9,000 barrels (210 kg per barrel) of ink per year. The finished product would be either inkjet ink (duty rate—1.8%) or inkjet printer cartridges (duty-free). New material inputs sourced from abroad
FTZ procedures could exempt EPI from customs duty payments on the additional foreign components used in export production. The company anticipates that some 55 percent of the plant's shipments will be exported, either as finished inkjet ink or in inkjet cartridges. On its domestic sales, EPI would be able to choose the duty rates during customs entry procedures that apply to inkjet ink (duty rate—1.8%) or inkjet printer cartridges (duty-free) for the additional foreign inputs noted above. EPI would also be exempt from duty payments on foreign materials that become scrap or waste during the production process. The request indicates that the additional savings from FTZ procedures would help improve the plant's international competitiveness.
In accordance with the Board's regulations, Diane Finver of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is March 26, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to April 10, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Diane Finver at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Import Administration, International Trade Administration, Department of Commerce.
David Goldberger (Mexico) or Holly Phelps (Republic of Korea), AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-0656, respectively.
On December 30, 2011, the Department of Commerce (“the Department”) received antidumping duty petitions concerning imports of large residential washers (washing machines) from the Republic of Korea (“Korea”) and Mexico filed in proper form by Whirlpool Corporation (“the petitioner”), a domestic producer of washing machines.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), the petitioner alleges that imports of washing machines from Korea and Mexico are being, or are likely to be, sold in the United States at less than fair value, within the meaning of section 731 of the Act, and that such imports materially injure, or threaten material injury to, an industry in the United States.
The Department finds that the petitioner filed these petitions on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(C) of the Act, and it has demonstrated sufficient industry support with respect to the investigations that it is requesting the Department to initiate (
The products covered by these investigations are washing machines from Korea and Mexico. For a full description of the scope of the investigations, please see the “Scope of the Investigations,” in Appendix I of this notice.
During our review of the petitions, we discussed the scope with the petitioner to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the regulations (
We are requesting comments from interested parties regarding the appropriate physical characteristics of washing machines to be reported in response to the Department's antidumping questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to more accurately report the relevant costs of production, as well as to develop appropriate product comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate listing of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as (1) general product characteristics and (2) the product comparison criteria. We note that it is not always appropriate to use all product characteristics as product comparison criteria. We base product comparison criteria on meaningful commercial differences among products. In other words, while there may be some physical product characteristics utilized by manufacturers to describe washing machines, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in product matching. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the antidumping duty questionnaires, we must receive comments at the above-referenced address by February 8, 2012. Additionally, rebuttal comments must be received by February 15, 2012. All comments must be filed on the records of both the Korea and Mexico antidumping duty investigations. All comments and submissions to the Department must be filed electronically using IA ACCESS, as referenced above.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the industry.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that washing machines constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product. For a discussion of the domestic like product analysis in this case,
In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the petitions with reference to the domestic like product as defined in the “Scope of Investigations” section above. To establish industry support, the petitioner provided its shipments of the domestic like product in 2010, and compared its shipments to the estimated total shipments of the domestic like product for the entire domestic industry.
Our review of the data provided in the petitions, supplemental submissions, and other information readily available to the Department indicates that the petitioner has established industry support. First, the petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (
The Department finds that the petitioner filed the petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the antidumping duty investigations that it is requesting the Department initiate.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (“NV”). In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by reduced market share, reduced shipments, underselling and price depression or suppression, a decline in financial performance, lost sales and revenue, and an increase in the volume of imports and import penetration.
The period of investigation (“POI”) is October 1, 2010, through September 30, 2011, for both Korea and Mexico.
The following is a description of the allegations of sales at less than fair value upon which the Department has based its decision to initiate investigations with respect to Korea and Mexico. The sources of, and adjustments to, the data relating to U.S. price and NV are discussed in greater detail in the Korea AD Initiation Checklist and the Mexico AD Initiation Checklist.
The petitioner provided three U.S. prices based on average model-specific retail prices obtained from a market survey database. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. Originally, the petitioner deducted international freight based on U.S. Customs and Border Protection (“CBP”) data from U.S price for both price-to-price comparisons and price-to-constructed value (CV) comparisons. It subsequently revised these comparisons to remove the deduction for international freight from U.S. price. However, because it is more accurate for price-to-price comparisons to deduct international freight expenses from the U.S. price, we revised the price-to-price margin calculations to deduct international freight.
The petitioner provided three home market prices based on a survey of retail prices in Korea. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. The petitioner further adjusted home market price by deducting Korean valued added tax (“VAT”) and other taxes. It made no other adjustments to home market price.
The petitioner provided two U.S. prices based on average model-specific retail prices obtained from a market survey database. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. Originally, the petitioner deducted international freight based on CBP data from U.S price for both price-to-price comparisons and price-to-CV comparisons. It subsequently revised these comparisons to remove the deduction for international freight from U.S. price. However, because it is more accurate for price-to-price comparisons to deduct international freight expenses from the U.S. price, we revised the price-to-price margin calculations to deduct international freight.
The petitioner provided two home market prices based on retail prices available in Mexico. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. The petitioner further adjusted home market price by deducting Mexican VAT. It made no other adjustments to home market price.
The petitioner provided information demonstrating reasonable grounds to believe or suspect that sales of large residential washing machines in the Korean and Mexican markets were made at prices below the fully-absorbed cost of production (“COP”), within the meaning of section 773(b) of the Act, and requested that the Department conduct a country-wide sales-below-cost investigation. The Statement of Administrative Action (“SAA”), submitted to the Congress in connection with the interpretation and application of the Uruguay Round Agreements Act, states that an allegation of sales below COP need not be specific to individual exporters or producers.
Further, the SAA provides that section 773(b)(2)(A) of the Act retains the requirement that the Department have “reasonable grounds to believe or suspect” that below-cost sales have occurred before initiating such an investigation. Reasonable grounds exist when an interested party provides specific factual information on costs and prices, observed or constructed, indicating that sales in the foreign market in question are at below-cost prices.
Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (“COM”); selling, general and administrative (“SG&A”) expenses; financial expenses; and packing expenses. The petitioner relied on its own production experience to calculate the raw material, packing, and freight costs included in the calculation of COM. The petitioner adjusted these inputs to account for known differences between U.S. and Korean prices and for differences in weights and technologies between the petitioner's washing machine models and those of the Korean producers' washing machine models sold in the comparison market and the United States. Inbound freight costs associated with procuring material inputs were calculated based on the petitioner's own experience adjusted for differences in weight between the washing machine models used to calculate COP/CV and the Korean models.
The petitioner relied on its own labor costs, adjusted for known differences between the U.S. and Korean hourly compensation rates for electrical equipment, appliance, and component manufacturing in 2007, as reported by the U.S. Bureau of Labor Statistics. The petitioner relied on its own experience to determine the per-unit factory overhead costs (exclusive of labor) associated with the production of washing machines.
The petitioner stated that the washing machine manufacturing processes in Korea are very similar to its own manufacturing processes, and therefore it is reasonable to estimate the Korean producers' usage rates based on the usage rates experienced by a U.S. washing machine producer.
To determine SG&A expense rates, the petitioner relied on the fiscal year (FY) 2010 unconsolidated financial statements of two Korean producers of washing machines. The petitioner relied on the FY 2010 consolidated financial statements of the same two Korean producers of washing machines to determine the financial expense rates.
Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the most comparable product, we find reasonable grounds to believe or suspect that sales of the foreign like product were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a country-wide cost investigation.
Because it alleged sales below cost, pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioner calculated NV based on CV. The petitioner calculated CV using the same average COM, SG&A, financial expense, and packing figures used to compute the COP. The petitioner relied on the same 2010 unconsolidated financial statements used as the basis for the SG&A rates to calculate profit rates. Because one of the producers did not incur a profit, the petitioner did not include profit in the calculation of CV for that producer's washing machine model. We revised petitioner's calculation of the profit rate for the second Korean washing machine producer to exclude those income and expense items not included in the petitioner's calculation of that producer's COP.
Based on the data provided by the petitioner, there is reason to believe that imports of washing machines from Korea are being, or are likely to be, sold in the United States at less than fair value. Based on a comparison of U.S. price to home-market price, as discussed above, the estimated dumping margins range from 31.03 percent to 77.52 percent. Based on a comparison of U.S. price to CV, as discussed above, the
Pursuant to section 773(b)(3) of the Act, COP consists of COM; SG&A expenses; financial expenses; and packing expenses. The petitioner relied on its own production experience to calculate the raw material, packing, and freight costs included in the calculation of COM. The petitioner adjusted these inputs to account for known differences between U.S. and Mexican prices and for differences in weights and technologies between the petitioner's U.S. washing machine models and those of the Mexican producers' washing machine models sold in the comparison market and the United States. Inbound freight costs associated with procuring material inputs were calculated based on the petitioner's own experience adjusted for differences in weight between the washing machine models used to calculate COP/CV and the Mexican models.
The petitioner relied on its own labor costs, adjusted for known differences between the U.S. and Mexican hourly compensation rates for electrical equipment, appliance, and component manufacturing in 2007, as reported by the U.S. Bureau of Labor Statistics. The petitioner relied on its own experience to determine the per-unit factory overhead costs (exclusive of labor) associated with the production of washing machines.
The petitioner stated that the washing machine manufacturing processes in Mexico are very similar to its own manufacturing processes, and therefore it is reasonable to estimate the Mexican producers' usage rates based on the usage rates experienced by a U.S. washing machine producer.
To determine SG&A expense rates, the petitioner relied on the FY 2010 unconsolidated financial statements of a Mexican producer of washing machines. The petitioner relied on the FY 2010 unconsolidated financial statements of the same producer of washing machines to determine the financial expense rate. Consistent with Department practice, we revised the petitioner's calculation of the financial expense rate to reflect the FY 2010 consolidated financial statements of the Mexican producer's parent company.
Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the most comparable product, we find reasonable grounds to believe or suspect that sales of the foreign like product were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a country-wide cost investigation.
Because it alleged sales below cost, pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioner calculated NV based on CV. The petitioner calculated CV using the same average COM, SG&A, financial expense, and packing figures used to compute the COP. As discussed above, we revised the financial expenses included in the petitioner's calculation of CV to reflect the financial expenses based on the FY 2010 consolidated financial statements of the Mexican producer's parent company. Because the producer did not incur a profit, the petitioner did not include profit in the calculation of CV.
Based on the data provided by the petitioner, there is reason to believe that imports of washing machines from Mexico are being, or are likely to be, sold in the United States at less than fair value. Based on a comparison of U.S. price to home market price, as discussed above, the estimated dumping margins are 27.21 percent and 58.62 percent. Based on a comparison of U.S. price to CV, as discussed above, the estimated dumping margins are 62.64 percent and 72.41 percent.
Based upon the examination of the petitions on washing machines from Korea and Mexico and other information reasonably available to the Department, the Department finds that these petitions meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of washing machines from Korea and Mexico are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act, unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.
On December 10, 2008, the Department issued an interim final rule for the purpose of withdrawing 19 CFR 351.414(f) and (g), the regulatory provisions governing the targeted dumping analysis in antidumping duty investigations, and the corresponding regulation governing the deadline for targeted-dumping allegations, 19 CFR 351.301(d)(5).
In order to accomplish this objective, if any interested party wishes to make a targeted dumping allegation in any of these investigations pursuant to section 777A(d)(1)(B) of the Act, such allegations are due no later than 45 days before the scheduled date of the country-specific preliminary determination.
The petition identifies three Korean producers that export washing machines to the United States: Samsung Electronics Co., Ltd. (Samsung), LG Electronics, Inc. (LG), and Daewoo Electronics Corporation (Daewoo). There is no information indicating that there are other Korean producers/exporters of the subject merchandise. Accordingly, the Department is selecting Samsung, LG, and Daewoo as mandatory respondents in this investigation pursuant to section 777A(e)(1) of the Act. Interested parties may submit comments regarding respondent selection within five calendar days of publication of this notice. Comments should be filed electronically using IA ACCESS.
For this investigation, the Department intends to select respondents based on CBP data for U.S. imports under the Harmonized Tariff Schedule of the United States (“HTSUS”) number 8450.20.0090. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties with access to information protected by APO within five days of publication of this
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Instructions for filing such applications may be found on the Department's Web site at
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the petitions and amendments thereto have been provided to the representatives of the Governments of Korea and Mexico. To the extent practicable, we will attempt to provide a copy of the public version of the petitions to each exporter named in the petition, as provided under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the petitions were filed, whether there is a reasonable indication that imports of washing machines from Korea and Mexico materially injure, or threaten material injury to, a U.S. industry. A negative ITC determination with respect to either country would result in the termination of the investigation with respect to that country;
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.203(c).
The products covered by these investigations are all large residential washers and certain subassemblies thereof from Korea and Mexico.
For purposes of these investigations, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).
Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:
(1)(a) It contains payment system electronics;
(2)(a) It contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
The products subject to these investigations are currently classifiable under subheading 8450.20.0090 of the Harmonized Tariff System of the United States (HTSUS). Products subject to these investigations may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council (Council) and its Surfclam, Ocean Quahog and Tilefish Committee, its Ecosystem and Ocean Planning Committee, and its Spiny Dogfish Committee will hold public meetings.
The meetings will be held Tuesday, February 14, 2012 through Thursday, February 16, 2012. See
Hilton Virginia Beach Oceanfront, 3001 Atlantic Avenue, Virginia Beach, VA; telephone: (757) 213-3001.
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255.
On Tuesday, February 14—The Surfclam, Ocean Quahog and Tilefish Committee will meet from 1 p.m. until 3 p.m. The Ecosystem and Ocean Planning Committee will meet from 3 p.m. until 5 p.m. On Wednesday, February 15—The Spiny Dogfish Committee will meet from 9 a.m. until 10 a.m. Action on the Omnibus Framework/Supplemental Environmental Assessment (EA) will occur from 10 a.m. until 12 p.m. A review of the Advisory Panel Workgroup Report will be held from 1 p.m. until 3 p.m. Action on the Squid, Mackerel, and Butterfish Framework will occur from 3 p.m. until 4 p.m. A Highly Migratory Species (HMS) presentation will be held from 4 p.m. until 5 p.m. There will be a Public Listening Session from 5 p.m. until 6 p.m. On Thursday February 16—The Council will hold its regular Business Session from 9 a.m. until 1 p.m. to approve the October and December minutes, receive Organizational Reports to include a SAW/SARC 53 Summary on Black Sea Bass, the New England Liaison Report, the Executive Director's Report, the Science Report, Committee Reports, and conduct any continuing and/or new business.
Agenda items by day for the Council's Committees and the Council itself are:
On Tuesday, February 14—The Surfclam, Ocean Quahog and Tilefish Committee will discuss and identify the next steps for Amendment 15. The Ecosystem and Ocean Planning Committee will receive a presentation by Dr. Steve Ross of UNC Wilmington on Bureau of Ocean Energy Management-funded work on deep-sea corals and consider and approve the mission statement.
On Wednesday, February 15—The Spiny Dogfish Committee will update and review the range of alternatives for Amendment 3. The Council will take action to revise risk policy measures through framework adjustment or other action regarding the Omnibus Framework or Supplemental EA. The Council will receive an Advisory Panel Workgroup Report to review and approve workgroup recommendations to modify the current process for Advisory panel membership and governance. The Council will take action to modify vessel hold certification requirements regarding the Squid, Mackerel and Butterfish Framework. The Council will hear a presentation on an Amendment that proposes catch shares in the Atlantic shark fishery. The Council will hold a Public Listening Session.
On Thursday, February 16—The Council will hold its regular Business Session to approve the October and December minutes, receive Organizational Reports to include a SAW/SARC 53 Summary on Black Sea Bass, the New England Liaison Report, the Executive Director's Report, Science Report, Committee Reports, and conduct any continuing and/or new business.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendment.
Notice is hereby given that a major amendment to Permit No. 15126-01 has been issued to NMFS National Marine Mammal Laboratory (Responsible Party: Dr. John Bengtson, Director), Seattle, WA.
The permit amendment and related documents are available for review upon written request or by appointment in the following offices:
Tammy Adams or Amy Sloan, (301) 427-8401.
On November 25, 2011, notice was published in the
The permit has been amended to include harassment of ribbon seals (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the United States Navy (Navy) to take marine mammals, by harassment, incidental to conducting physical oceanographic studies in the southwest Indian Ocean.
Effective January 23, 2012, through March 7, 2012.
A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
An electronic copy of the application containing a list of references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
Michelle Magliocca, Office of Protected Resources, NMFS, (301) 427-8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
Authorization for the incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
NMFS received an application on August 15, 2011, from the United States Navy (Navy) for the taking of marine mammals, by Level B harassment, incidental to conducting physical oceanographic studies in the southwest Indian Ocean. Upon receipt of additional information, NMFS determined the application complete and adequate on September 14, 2011.
The Navy plans to use one source vessel, the R/V
Acoustic stimuli (
The Navy's physical oceanographic studies are scheduled to commence on January 23, 2012, and continue for approximately 17 days ending on February 8, 2012. Some deviation from this timeline is possible due to logistics and weather conditions. NMFS is issuing an authorization that extends from January 23, 2012, through March 7, 2012.
Within this time period, the Navy will conduct seismic oceanography surveys using a towed array of two low-energy
The
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this document. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is expressed as the ratio of a measured sound pressure and a reference level. The commonly used reference pressure level in underwater acoustics is 1 μPa, and the units for SPLs are dB re: 1 μPa.
SPL (in decibels (dB)) = 20 log (pressure/reference pressure)
SPL is an instantaneous measurement and can be expressed as the peak, the peak-peak (p-p), or the root mean square (rms). Rms, which is the square root of the arithmetic average of the squared instantaneous pressure values, is typically used in discussions of the effects of sounds on vertebrates and all references to SPL in this document refer to rms unless otherwise noted. SPL does not take the duration of a sound into account.
The
Airguns function by venting high-pressure air into the water which creates an air bubble. The pressure signature of an individual airgun consists of a sharp rise and then fall in pressure, followed by several positive and negative pressure excursions caused by the oscillation of the resulting air bubble. The oscillation of the air bubble transmits sounds downward through the seafloor and the amount of sound transmitted in the near horizontal directions is reduced. However, the airgun array also emits sound that travels horizontally toward non-target areas. The nominal source levels of the airgun array that will be used by the Navy on the
Lamont-Doherty Earth Observatory (L-DEO) developed a verified model that predicts impulsive sound pressure field propagation and accurately describes acoustic propagation in marine waters of depths greater than 1,000 m. These model-generated sound propagation radii are routinely used for determination of received sound levels generated by impulsive sound sources, and have been previously applied in calculating the total ensonified area for use of two low-energy 105 in
For the ETP, one and three 105 in
Based on extant modeling, the proposed sound propagation radii for the two 105 in
Considering the circumference of the area ensonified to the 160 dB isopleth extends to 1,340 m (twice the 670 m radius); that the GI-gun array is towed approximately 2-9 m below the surface at a speed of 4 knots (7.4 km/hr), and that the seismic oceanographic surveys will be conducted for 14 days for 24 hrs/day, the Navy estimates that the seismic oceanographic survey distance will encompass 1,344 Nm (2,489 km). Multiplying the total linear distance of the seismic oceanographic survey by the area ensonified to the 160 dB isopleth (1,340 m), yields a total ensonified area of approximately 3,335 km
A hull-mounted Teledyne RD Instruments Ocean Surveyor ADCP (TRDI OS ADCP) will be operated at 38 kHz with acoustic output pressure of 224 dB re 1 µPa. The beamwidth will be 30 degrees off nadir and the acoustic pressure along each beam is estimated at 180 dB re 1 µPa at 114 m. The TRDI OS ADCP will operate concurrently with the GI-gun array and intermittently to map the distribution of water currents and suspended materials in the water column.
A lowered Teledyne RD Instruments ADCP (L-ADCP) will be mounted on a rosette with a conductivity-temperature-depth gauge. The beamwidth will be 30 degrees off nadir and the output pressure will be 216 dB re 1 µPa at 300 kHz. The L-ADCP will be deployed intermittently to collect hydrographic data.
Up to four long-range ADCPs (LR-ADCPs) will be anchored on the sea floor using 400 kilograms (kg) of scrap iron (assemblage of four scrap locomotive wheels). LR-ADCPs will be moored to the sea floor at an estimated 3,000 m, such that they float at a depth of 500 m below the sea surface. LR-ADCPs will be suspended from the iron anchorage assemblies by a single line comprised of
The
The
A proposed authorization and request for public comments was published in the
Due to lack of detailed information on marine mammal population distributions and densities in the research area, informed assumptions on the exact distribution patterns of animals cannot be made. Therefore, exposure estimates are based on uniform distribution of marine mammals over the area for which population data is available. Many species are unlikely to be found in numbers that peak population density estimates suggest. During the January-February period, when the ARC12 research project is planned, many marine mammals will be outside of the action area.
Forty marine mammal species are known to inhabit waters between South Africa and Antarctica. Six of these species are listed as endangered under the United States Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
Acoustic stimuli generated by the operation of airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the proposed survey area. The effects of sounds from airgun operations might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent impairment, or non-auditory physical or physiological effects (Richardson
Permanent hearing impairment, in the unlikely event that it occurred, would constitute injury, but temporary threshold shift (TTS) is not considered an injury but rather a type of Level B harassment (Southall
The notice of the proposed IHA (76 FR 71940, November 21, 2011) included a discussion of the effects of sounds from seismic activities on cetaceans and pinnipeds. NMFS refers the reader to the Navy's application and NMFS' EA (
The seismic survey will not result in any permanent impact on habitats used by the marine mammals in the survey area, including the food sources they use (
One reason for the adoption of airguns as the standard energy source for marine seismic surveys is that, unlike explosives, they have not been associated with large-scale fish kills. However, existing information on the impacts of seismic surveys on marine fish populations is limited. There are three types of potential effects of exposure to seismic surveys: (1) Pathological, (2) physiological, and (3) behavioral. A general synopsis of the available information on the effects of exposure to seismic and other anthropogenic sound as relevant to fish was provided in the notice of proposed IHA (76 FR 71940, November 21, 2011).
The existing body of information on the impacts of seismic survey sound on marine invertebrates is very limited. However, there is some unpublished and very limited evidence of the potential for adverse effects on invertebrates, thereby justifying further discussion and analysis of this issue. The three types of potential effects of exposure to seismic surveys on marine invertebrates are pathological, physiological, and behavioral. Based on the physical structure of their sensory organs, marine invertebrates appear to be specialized to respond to particle displacement components of an impinging sound field and not to the pressure component (Popper
In conclusion, NMFS has determined that the Navy's marine seismic survey is not expected to have any habitat-related effects that could cause significant or long-term consequences for marine mammals or the food sources that they utilize.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
The Navy will implement the following mitigation measures during the seismic survey:
The Navy used the exposure threshold isopleths applicable to cetaceans and pinnipeds, as well as extant models of same/similar GI-gun sources and water depths, as the basis for their exclusion zones. The exclusion zone will be 70 m for the 180 dB exposure thresholds and will be employed for monitoring.
If a marine mammal is observed moving on a path toward an exclusion zone, an attempt will be made to adjust the vessel speed or course in order to minimize the likelihood of an animal entering an exclusion zone. Speed and course alterations are not always possible when towing a long GI-gun array, but are considered possible options given the use of a dual GI-gun array.
The Navy will shut down the operating airgun array if a marine mammal is seen within or approaching an exclusion zone. The Navy will implement a shut-down if a cetacean is observed within or approaching the 180 dB isopleth (70 m). Airgun activity will not resume until the marine mammal has cleared the exclusion zone or has not been seen for 15 (dolphins) to 30 minutes (whales).
Ramp-up will be comprised of gradually activating the dual GI-guns in sequence over a period of about 30 min until the desired operating level is reached. This should allow any marine mammals in the area to avoid the maximum sound source. Airguns will be activated in a sequence such that the source level of the array will increase in steps not exceeding 6 dB per 5-min periods over a total duration of 30 min. During ramp-up, protected species observers will monitor the exclusion zones for marine mammals and a shutdown will be implemented if an animal is detected in or approaching an exclusion zone.
NMFS carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, NMFS determined that the above mitigation measures provide the means of effecting the least practicable impacts on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing
The Navy will sponsor marine mammal monitoring during the proposed activity, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the IHA. The Navy's monitoring plan is described below.
The Navy will continuously monitor the harassment isopleths during daytime and nighttime airgun operations. Visual monitoring will be comprised of three protected species observers (PSOs) typically working in shifts of 4-hr durations or less. A PSO platform is located one deck below and forward of the bridge (12.5 m [41 ft] above the waterline), providing a relatively unobstructed 180 degree view forward. Aft views can be obtained along both the port and starboard decks. During daytime operations, PSOs will systematically survey the area around the vessel with reticle and big-eye binoculars and the naked eye. A clinometer will be used to determine distances of animals in close proximity to the vessel, and hand-held fixed rangefinders and distance marks on the
The PSOs will be in wireless communication with ship's officers on the bridge and scientists in the vessel's operations laboratory, so they can promptly advise of the need for avoidance maneuvers or seismic source shutdown. Shutdown of GI-gun operations will occur immediately upon observation/detection of any marine mammal in an exclusion zone. Following a shutdown, GI-gun ramp-up will not be initiated until PSOs have confirmed the marine mammal is no longer observed/detected for a period of 15 or 30 minutes (depending on species). If a marine mammal is outside of an exclusion zone and observed by a PSO to exhibit abnormal behaviors consistent with signs of harassment (e.g., avoidance, dive patterns, multiple changes in direction), operation of the GI-guns will cease until the animal moves out of the area or is not resighted for a period of 30 min.
PSOs will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data will be used to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They will also provide information needed to order a power down or shut down of the airguns when a marine mammal is within or nearing the exclusion zone.
When a sighting is made, the following information will be recorded:
1. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare;
2. Species, group size, age, individual size, sex (if determinable);
3. Behavior when first sighted and subsequent behaviors;
4. Bearing and distance from the vessel, sighting cue, exhibited reaction to the airgun sounds or vessel (
5. Fin/fluke characteristics and angle of fluke when an animal submerges to determine if the animal executed a deep or surface dive;
6. Type and nature of sounds heard; and
7. Any other relevant information.
When shutdown is required for mitigation purposes, the following information will be recorded:
1. The basis for decisions resulting in shutdown of the GI-guns;
2. Information needed to estimate the number of marine mammals potentially taken by harassment;
3. Information on the frequency of occurrence, distribution, and activities of marine mammals in the study area;
4. Information on the behaviors and movements of marine mammals during and without operation of the GI-guns; and
5. Any adverse effects the shutdown had on the research.
PSOs will provide estimates of the numbers of marine mammals exposed to the GI-gun source and any disturbance reactions exhibited, or the lack thereof. Observations and data collection will aim to provide estimates of the actual numbers of animals taken, verify the level of harassment, aide in assessment of impacts on populations on conclusion of the study, and increase knowledge of species in the study area. Observations and data collection will also aim to provide information that will allow for verifying or disputing that the takings are negligible.
The Navy will submit a report to NMFS within 90 days after the end of the cruise. The report will describe the operations that are conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the number and nature of exposures that could result in “takes” of marine mammals.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hrs preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hrs preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that the Navy discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less
In the event that the Navy discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Navy will report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS within 24 hrs of the discovery. The Navy will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Only take by Level B harassment is authorized as a result of the physical oceanographic survey off the southern coast of Africa. Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the dual airgun array may have the potential to cause marine mammals in the survey area to be exposed to sounds at or greater than 160 dB or cause temporary, short-term changes in behavior. There is no evidence that the planned activities will result in injury, serious injury, or mortality within the specified geographic area for which the Navy seeks the IHA. NMFS determined that the required mitigation and monitoring measures will minimize any potential risk for injury or mortality.
NMFS included an in-depth discussion of the methods used to calculate the densities of marine mammals in the area of the survey in a previous notice for the proposed IHA (76 FR 71940, November 21, 2011). A summary is included here.
The estimates are based on a consideration of the number of marine mammals that could be disturbed appreciably by operations with the GI-gun array to be used during multiple transects totaling approximately 2,489 km (1,547 mi). Density estimates on the marine mammal species in the survey area are based on data derived from a number of sources: the Ocean Biogeographic Information System OBIS Seamap (OBIS-SEAMP); the International Union for Conservation of Nature (IUCN, 2010); the Convention on the Conservation of Migratory Species of Wild Animals (CMS, 2010); NatureServe Explorer (NatureServe, 2010); the International Whaling Commission (IWC); NOAA Fisheries Office of Protected Resources; and the Navy Marine Species Density Database (NMSDD); unless otherwise cited.
One method of estimating takes assumes marine mammals are uniformly distributed throughout a given area, although this is not representative of the real world distribution of marine mammals in any given geographic region. Marine mammals are typically found grouped in pods, concentrate around preferred breeding and foraging habitats, and most species follow seasonal migratory patterns and routes. However, due to lack of substantive information on marine mammal population distributions and densities in the area of the proposed action, informed assumptions on distribution patterns cannot be made, and exposure estimates are based on uniform distribution of marine mammals over the area for which population data are available. Bearing these factors in mind, the exposure estimates provided are considered reasonable approximations of potential exposure, and based on the best available information.
Table 3 provides estimates of the minimum, average (considered the best estimate), and maximum marine mammal population densities in the area of the proposed study during the austral summer, anticipated occurrence of each species, and requested take authorization. For all species evaluated, average population density estimates were used for calculation of the number of marine mammals that may be exposed. NMFS has used average (or best) population density estimates when analyzing the allowable harassment for ESA-listed marine mammals incidental to marine seismic surveys for scientific research purposes (
Because extant mathematical models poorly simulate and predict the natural meander of the AC, ARC, and ARC/ACC frontal system, and due to unpredictable weather conditions, it is not possible to accurately predict the exact location where seismic oceanographic survey transects would occur. For this reason, the minimum, average, and maximum population densities given in Table 3 are the mean of the population densities for each species within the coordinates of 36°S to 43°S, and 19°E to 30°E. The front is estimated to be phase-locked between 36°S to 40°S, and 21°E to 27°E; however, the position of the front can vary by up to 100 km (generally west, east, and south of this estimated location). Because the precise location of the seismic oceanography survey transects cannot be known in advance, it is not possible to accurately differentiate the numbers of marine mammals that may be exposed in waters of the global commons (high seas), as opposed to within the South African exclusive economic zone (EEZ). Because the specific location of research activities cannot be predetermined, due to the variables described, this assessment conservatively estimates that all exposures occur in waters of the global commons (high seas) where estimated population density estimates are higher.
Based on the best available population density estimates, 2,412 cetacea may potentially be exposed to sound pressure levels ≥160 dB re 1 μPa.rms. Of the total number of cetaceans that are estimated to be exposed, 62 are listed as endangered under the ESA: 29 fin (<0.2% of the southern hemisphere population), 1 humpback (<0.004% of the southern hemisphere population), 11 sei (<0.2% of the population south of 30°S), 1 southern right (<0.004% of the southern hemisphere population), and 20 sperm (<0.02% of the southern hemisphere population) whales. For all species, the number of individuals that would be exposed to sounds ≥160 dB re 1 μPa.rms is less than 0.2 percent of the given species' population for which regional population density estimates are known.
Exposure estimates are based on marine mammal population density estimates relative to the total area ensonified by the GI-gun array, and evaluated for exposure to the 160 dB isopleth. Multiplying the total area ensonified during the seismic oceanography survey by the population estimate for each species, yields the estimated number of marine mammals exposed to sound pressures >160 dB. The total ensonified area is about 3,335 km
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * *an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to:
(1) The number of anticipated mortalities;
(2) The number and nature of anticipated injuries;
(3) The number, nature, and intensity, and duration of Level B harassment; and
(4) The context in which the takes occur.
As mentioned previously, NMFS estimates that 30 species of marine mammals could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (less than one percent) relative to the population size.
No injuries, serious injuries, or mortalities are anticipated to occur as a result of the Navy's planned physical oceanographic survey, and none are authorized by NMFS. Additionally, for reasons presented in the notice of proposed IHA (76 FR 71940, November 21, 2011), temporary hearing impairment (and especially permanent hearing impairment) is not anticipated to occur during the proposed specified activity. Only short-term behavioral disturbance is anticipated to occur due to the brief and sporadic duration of the survey activities. No mortality or injury is expected to occur, and due to the nature, degree, and context of behavioral harassment anticipated, the activity is not expected to impact rates of recruitment or survival.
NMFS has determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting a physical oceanographic survey off the southern coast of Africa, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals.
Of the ESA-listed marine mammals that may potentially occur in the survey area, blue and southern right whale populations are thought to be increasing; population trends for fin, humpback, sei, and sperm whales are not well known in the southern hemisphere. However, no take of blue whales was requested because of the low likelihood of encountering this species during the survey. There is no designated critical habitat for marine mammals in the survey area. There are also no important habitat areas (
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the Navy's planned research activities (and the resulting total taking from the survey): (1) Will result in the incidental take of small numbers of marine mammals, by Level B harassment only; (2) will have a negligible impact on the affected species or stocks; and (3) will have mitigated impacts to affected species or stocks of marine mammals to the lowest level practicable.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Of the species of marine mammals that may occur in the proposed survey area, six are listed as endangered under the ESA, including the blue, fin, humpback, sei, southern right, and sperm whales. Under section 7 of the ESA, the Navy initiated formal consultation with NMFS, Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, on this survey. NMFS' Office of Protected Resources, Permits and Conservation Division, also initiated formal consultation under section 7 of the ESA with NMFS' Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, to obtain a Biological Opinion evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take.
The Biological Opinion was issued on January 20, 2012, and concluded that the specified activity and issuance of the IHA are not likely to jeopardize the continued existence of blue, fin, humpback, sei, southern right, or sperm whales. The Biological Opinion also concluded that designated critical habitat for these species does not occur in the survey area and would not be affected by the survey. The Navy, in addition to the mitigation and monitoring requirements included in the IHA, will be required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion issued to both the Navy and NMFS' Office of Protected Resources, Permits and Conservation Division.
To meet NMFS' NEPA requirements for the issuance of an IHA to the Navy, NMFS prepared an Environmental Assessment (EA), titled “Issuance of an Incidental Harassment Authorization to the Navy to Take Marine Mammals by Harassment Incidental to a Physical Oceanographic Survey in the Southwest Indian Ocean.” NMFS provided relevant environmental information to the public through the notice for the proposed IHA (76 FR 71940, November 21, 2011) and has considered public comments received in response prior to finalizing the EA and deciding whether or not to issue a Finding of No Significant Impact (FONSI).
NMFS concluded that issuance of an IHA would not significantly affect the quality of the human environment and has issued a FONSI. Therefore, it is not necessary to prepare an Environmental Impact Statement for the issuance of an IHA to the Navy for this activity. The EA and FONSI for this activity can be viewed on NMFS' Web site (
As a result of these determinations, NMFS has issued an IHA to the Navy for conducting a physical oceanographic survey off the southern coast of Africa, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Commodity Futures TradingCommission.Sunshine Act Meetings.
10 a.m., Friday February 17, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Commodity Futures TradingCommission.Sunshine Act Meetings.
10 a.m., Friday February 24, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Commodity Futures Trading Commission.
10 a.m., Friday February 10, 2012.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Commodity Futures Trading Commission. Sunshine Act Meetings.
10 a.m., Friday February 3, 2012.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Thursday, February 2, 2012, 9 a.m.-12 p.m.
Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
1.
2.
A live webcast of the Meeting can be viewed at
Thursday, February 2, 2012; 2 p.m.-3 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by February 10, 2012.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 12-C0006, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.
Amy S. Colvin, General Attorney, Division of Enforcement and Information, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7639.
The text of the Agreement and Order appears below.
1. In accordance with 16 CFR 1118.20, Hewlett-Packard Company (“HP”) and the staff (“Staff”) of the United States Consumer Product Safety Commission (“Commission”) hereby enter into this Settlement Agreement (“Agreement”) under the Consumer Product Safety Act (“CPSA”). The Agreement and the incorporated attached Order (“Order”) resolve the Staff's allegations set forth below.
2. The Staff is the staff of the U.S. Consumer Product Safety Commission, an independent federal regulatory agency established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. 2051-2089.
3. HP is a corporation, organized and existing under the laws of Delaware, with its principal executive office located in Palo Alto, California.
4. Between December 2004 and July 2006, HP imported approximately 32,000 lithium-ion battery packs (the “Products”) that were shipped with, sold as accessories for use with, or provided as spare parts for the following HP notebook computers: the HP Pavilion dv1000, dv8000, and zd8000 series; the Compaq Presario v2000 and v2400 series; and the HP Compaq nc6110, nc6120, nc6140, nc6220, nc6230, nx4800, nx4820, nx6110, nx6120, and nx9600 models. HP, in addition to computer and electronics stores nationwide, as well as various Web retailers, sold notebook computers that contained the Products for between $700 and $3,000. The Products that were sold separately for use with the
5. The Products are “consumer products” and, at all relevant times, HP was a “manufacturer” of these consumer products, which were “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (8), and (11) of the CPSA, 15 U.S.C. 2052(a)(5), (8), and (11).
6. The Products can overheat, posing a fire and burn hazard to consumers.
7. Between June 2005 and March 2007, HP received 17 reports of Product incidents, some of which involved flames or fires.
8. Between March 2007 and April 2007, HP conducted a study, from which it obtained additional information about the Products.
9. By September 2007, HP knew of approximately 22 reports of incidents involving the Products. In at least two of those incidents, the Products caused injury to consumers. In at least one of those incidents, the consumer apparently went to the hospital. HP did not receive any information on the consumer's injuries or treatment, if any.
10. Despite being aware of the information set forth in Paragraphs 6 through 9, HP did not report to the Commission until July 25, 2008. By that time, HP was aware of at least 31 reports of incidents involving the Products, which had caused injuries to at least two consumers. HP also was aware that at least one consumer apparently went to the hospital because of an incident involving the Product. Following consultation with the Commission from July to October 2008, the Products were recalled in October 2008.
11. Although HP had obtained sufficient information to reasonably support the conclusion that the Products contained a defect which could create a substantial product hazard, or created an unreasonable risk of serious injury or death, HP failed to immediately inform the Commission of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4). In failing to immediately inform the Commission, HP knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
12. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, HP is subject to civil penalties for its knowing failure to report, as required under section 15(b) of the CPSA, 15 U.S.C. 2064(b).
13. On or about October 30, 2008, the Commission, in cooperation with HP and other companies, announced a voluntary recall of the Products. The recall announcement can be accessed at:
14. HP denies all of the Staff's allegations, including, but not limited to, the allegations that the Products (or the notebooks with which the Products were used) could create an unreasonable risk of serious injury or death, or that HP violated the reporting requirements of the CPSA. HP further denies that it committed any violation of the CPSA “knowingly,” as that term is defined in Section 20(d) of the CPSA, 15 U.S.C. 2069(d). With respect to the voluntary recall of the Products and the communications/reports leading up to that recall, HP acted in accordance with the CPSA and in its customers' best interests.
15. Under the CPSA, the Commission has jurisdiction over this matter and over HP.
16. In settlement of the Staff's allegations, HP shall pay a civil penalty in the amount of four hundred twenty-five thousand dollars ($425,000.00) within 20 calendar days of receiving service of the Commission's final Order accepting the Agreement. The payment shall be made by check payable to the order of the United States Treasury.
17. In consideration of HP's payment, the Commission agrees to release HP, as well as its current and former directors, officers, trustees, employees, agents, and representatives from any civil claim that the Commission has or may have against those parties arising out of or relating to the recall of October 30, 2008, or the Staff's allegations that HP failed to report in a timely manner a potential hazard involving the Products.
18. The parties enter into this Agreement for settlement purposes only. The Agreement does not constitute an admission by HP or a determination by the Commission that HP knowingly violated the CPSA's reporting requirements. The Agreement by the parties of the terms and conditions set forth herein is without any adjudication of any issue of fact or law.
19. Upon provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
20. Upon the Commission's final acceptance of the Agreement and issuance of the final Order, HP knowingly, voluntarily, and completely waives any rights it may have in this matter to the following: (i) An administrative or judicial hearing; (ii) judicial review or other challenge or contest of the Commission's actions; (iii) a determination by the Commission of whether HP failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.
21. The Commission may publicize the terms of the Agreement and the Order.
22. The Agreement and the Order shall apply to, and be binding upon, HP and each of its successors and/or assigns.
23. The Commission issues the Order under the provisions of the CPSA, and a violation of the Order may subject HP and each of its successors and/or assigns to appropriate legal action.
24. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. The Agreement shall not be waived, amended, modified, or otherwise altered without written agreement executed by the party against whom such waiver, amendment, modification, or alteration is sought to be enforced.
25. If any provision of the Agreement and the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and HP agree that severing the provision materially affects the purpose of the Agreement and Order.
26. This Agreement may be signed in counterparts.
Hewlett-Packard Company
Dated: December 15, 2011.
Dated: December 20, 2011.
Dated: January 9, 2012.
Upon consideration of the Settlement Agreement entered into between Hewlett-Packard Company (“HP”), and the U.S. Consumer Product Safety Commission (“Commission”) staff, and the Commission having jurisdiction over the subject matter and over HP, and it appearing that the Settlement Agreement and the Order are in the public interest, it is
Provisionally accepted and provisional Order issued on the 20th day of January, 2012.
By Order of the Commission:
U.S. Central Command, DoD.
Notice to Amend a System of Records.
The U.S. Central Command is amending a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective on February 27, 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:
*
Follow the instructions for submitting comments.
*
Ms. Evlyn Hearne, USCENTCOM CCJ6-RDF, 7115 South Boundary Blvd., MacDill AFB, FL 33621-5101 or at (813) 827-7482.
The U.S. Central Command systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The U.S. Central Command proposes to amend one system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Combined Mild Traumatic Brain Injury Registry (September 30, 2010, 75 FR 60431).
Change system ID to read “FCENTCOM 01”.
Department of the Army, DoD.
Notice.
The invention relates to preventing and/or reducing the incidence of transfusion-related malaria, and the use of magnetism to accomplish this. Announcement is made of the availability for licensing of the invention set forth in U.S. Provisional Patent Application Serial No. 61/584,977, entitled “Use of Magnetism to Inactivate, Kill and/or Remove Malaria Parasites from Transfused Blood and Apparatus and Kits for Accomplishing the same,” filed on January 10, 2012. The United States Government, as represented by the Secretary of the Army, has rights to this invention.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research and Technology Applications (ORTA), (301) 619-6664, both at telefax (301) 619-5034.
The invention relates to methods of preventing or reducing the incidence of transfusion-related malaria, and, in particular, to inactivating, killing and/or removing malaria parasites from blood supplies such as whole blood, platelets, plasma or other components of blood.
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209(e), and 37 CFR 404.7(a)(1)(i) and 37 CFR 404.7(b)(1)(i), announcement is made of the intent to grant an exclusive, revocable license to the invention claimed in International Patent Application No. PCT/US2009/060852 entitled “Method and Device for Detection of Bioavailable Drug Concentration In A Fluid Sample,” filed on October 15, 2009 (which claims the benefit of U.S. Provisional Patent Application Serial No. 61/105,604 filed October 15, 2008). The intended licensee is The University of Tennessee with its principal place of business at UT Conference Center, Suite 211, 600 Henley Street, Knoxville, TN 37996-4122.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, MD 21702-5012.
For licensing issues, Dr. Paul Mele, Office of Research & Technology Applications, (301) 619-6664. For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808; both at telefax (301) 619-5034.
Anyone wishing to object to grant of this license can file written objections along with supporting evidence, if any, within 15 days from the date of this publication. Written objections are to be filed with the Command Judge Advocate (see
Department of the Army, DoD.
Notice of open meeting.
Under the provisions to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal advisory committee meeting will take place:
To request advance approval or obtain further information, contact COL Donald Myers, (717) 245-3907 or
This meeting is open to the public. Interested persons may submit a written statement for consideration by the U.S. Army War College Subcommittee. Written statements should be no longer than two type-written pages and must address: the issue, discussion, and a recommended course of action. Supporting documentation may also be included as needed to establish the appropriate historical context and to provide any necessary background information.
Individuals submitting a written statement must submit their statement to the Alternate Designated Federal Officer at the following address: Attn: Alternate Designated Federal Officer, Dept, of Academic Affairs, 122 Forbes Avenue, Carlisle, PA 17013. At any point, however, if a written statement is not received at least 10 calendar days prior to the meeting, which is the subject of this notice, then it may not be provided to or considered by the U.S. Army War College Subcommittee until its next open meeting.
The Alternate Designated Federal Officer will review all timely submissions with the U.S. Army War College Subcommittee Chairperson, and ensure they are provided to members of the U.S. Army War College Subcommittee before the meeting that is the subject of this notice. After reviewing the written comments, the Chairperson and the Alternate Designated Federal Officer may choose to invite the submitter of the comments to orally present their issue during an open portion of this meeting or at a future meeting.
The Alternate Designated Federal Officer, in consultation with the U.S. Army War College Subcommittee Chairperson, may, if desired, allot a specific amount of time for members of the public to present their issues for review and discussion by the U.S. Army War College Subcommittee.
U.S. Department of Energy.
Notice and request for OMB review and comment.
The Department of Energy (DOE) has submitted to the Office of Management and Budget (OMB) for clearance, a proposal for collection of information under the provisions of the Paperwork Reduction Act of 1995. The proposed collection will supersede the existing Form OE-781R, “Monthly Electricity Imports and Exports Report”. The Form OE-781R is currently suspended and would be terminated with the implementation of the proposed Form EIA-111.
Comments regarding this collection must be received on or before February 27, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the DOE Desk Officer at OMB of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 395-4650.
Written comments should be sent to the DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street, NW., Washington, DC 20503, and to Michelle Bowles. To ensure receipt of the comments by the due date, email (eia-111@eia.gov) is recommended. The mailing address is the U.S. Department of Energy, U.S. Energy Information Administration, Mail Stop: EI-23 (Form EIA-111), 1000 Independence Avenue SW., Washington, DC 20585. Alternatively,
Requests for additional information or copies of any forms and instructions (the draft proposed collection) should be directed to Michelle Bowles at the address listed above. Forms and instructions are also available on the internet at:
This information collection request contains: (1) OMB No.; (2) Information Collection Request Title; (3) Type of Request; (4) Purpose; (5) Annual Estimated Number of Respondents; (6) Annual Estimated Number of Total Responses; (7) Annual Estimated Number of Burden Hours; (8) Annual Estimated Reporting and Recordkeeping Cost Burden.
1. New.
2. Form EIA-111, Quarterly Electricity Imports and Exports Report.
3. Three-year approval.
4. Form EIA-111 collects U.S. electricity import and export data. The data are used to get an accurate measure of the flow of electricity into and out of the United States. The import and export data are reported by U.S. purchasers, sellers and transmitters of wholesale electricity, including persons authorized by Order to export electric energy from the United States to foreign countries, persons authorized by Presidential Permit to construct, operate, maintain, or connect electric power transmission lines that cross the U.S. international border, and U.S. Balancing Authorities that are directly interconnected with foreign Balancing Authorities. Such entities are to report monthly flows of electric energy received or delivered across the border, the cost associated with the transactions, and actual and implemented interchange. The data collected on this form may appear in various EIA publications.
5. 173 respondents surveyed quarterly.
6. 692 responses annually.
7. Annual total of 4,152 hours.
10. Annual total of $0.
Section 13(b) of the Federal Energy Administration Act of 1974, Pub. L. 93-275, codified at 15 U.S.C. 772(b).
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF High Energy Physics Advisory Panel (HEPAP). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Monday, March 12, 2012; 10 a.m.-6 p.m. and Tuesday, March 13, 2012; 9 a.m.-1 p.m.
Hotel Palomar, 2121 P Street NW., Washington, DC 20037.
John Kogut, Executive Secretary; High Energy Physics Advisory Panel; U.S. Department of Energy; SC-25/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290; Telephone: (301) 903-1298.
Tentative Agenda: Agenda will include discussions of the following:
• Discussion of Department of Energy High Energy Physics Program
• Discussion of National Science Foundation Elementary Particle Physics Program
• Reports on and Discussions of Topics of General Interest in High Energy Physics
• Public Comment (10-minute rule)
Public Participation: The meeting is open to the public. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of these items on the agenda, you should contact John Kogut by phone at: (301) 903-1298 or by email at:
Minutes: The minutes of the meeting will be available on the High Energy Physics Advisory Panel Web site at:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, February 15, 2012, 5 p.m.
Atomic Testing Museum, 755 E. Flamingo Road, Las Vegas, Nevada 89119.
Denise Rupp, Board Administrator, 232 Energy Way, M/S 505, North Las Vegas, Nevada 89030. Phone: (702) 657-9088; Fax (702) 295-5300 or Email:
1. Discussion regarding U233 Waste Disposition at the Nevada National Security Site
Department of Energy; Office of Science.
Notice of Open Meeting.
This notice announces a meeting of the Biological and Environmental Research Advisory Committee (BERAC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, February 16, 2012, 9 a.m. to 5 p.m.; Friday, February 17, 2012, 8:30 a.m. to 12 p.m.
Omni Shoreham Hotel, 2500 Calvert Street NW., Washington, DC 20008.
Dr. David Thomassen, Designated Federal Officer, BERAC, U.S. Department of Energy, Office of Science, Office of Biological and Environmental Research, SC-23/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290. Phone (301) 903-9817; fax (301) 903-5051 or email:
Purpose of the Meeting: To provide advice to the Director, Office of Science, Department of Energy, on the many complex scientific and technical issues that arise in the development and implementation of the Biological and Environmental Research Program.
• Report from the Office of Science
• Report from the Office of Biological and Environmental Research
• News from the Biological Systems Science and Climate and Environmental Sciences Divisions
• Discussion on the Technology Implementation for Long-Term Vision charge
• Updates on the Joint Genome Institute, Environmental Molecular Sciences Laboratory, and Knowledgebase project
• New Business
• Public Comment
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during December 2011, it issued Orders granting, amending and vacating authority to import and export natural gas and liquefied natural gas. These Orders are summarized in the attached appendix and may be found on the FE Web site at
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).
Notice of Limited Waivers.
The U.S. Department of Energy (DOE) is hereby granting a nationwide limited waiver of the Buy American requirements of section 1605 of the Recovery Act under the authority of Section 1605(b)(2), (iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality), with respect to Recovery Act projects funded by EERE for: (1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure); (2) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and (3) 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet distance, UL certified. This waiver expires May 1, 2012.
Effective Date: 1/10/2012.
Christine Platt-Patrick, Office of Energy Efficiency and Renewable Energy (EERE), (202) 287-1553, Department of Energy, 1000 Independence Avenue SW., Mailstop EE-2K, Washington, DC 20585.
Under the authority of American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111-5, section 1605(b)(2), the head of a Federal department or agency may issue a “determination of inapplicability” (a waiver of the Buy American provision) if the iron, steel, or relevant manufactured good is not produced or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality (“nonavailability”). The authority of the Secretary of Energy to make all inapplicability determinations was re-delegated to the Assistant Secretary for Energy Efficiency and Renewable Energy (EERE), for EERE projects under the Recovery Act, in Redelegation Order No. 00-002.01E, dated April 25, 2011. Pursuant to this delegation the Acting Assistant Secretary, EERE, has concluded that: (1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure); (2) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and (3) 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet
In order to utilize this waiver, grantees must have taken substantial steps towards procurement of these items by May 1, 2012.
EERE has developed a robust process to ascertain in a systematic and expedient manner whether or not there is domestic manufacturing capacity for the items submitted for a waiver of the Recovery Act Buy American provision. This process involves a close collaboration with the United States Department of Commerce National Institute of Standards and Technology (NIST) Manufacturing Extension Partnership (MEP), in order to scour the domestic manufacturing landscape in search of producers before making any nonavailability determinations.
The MEP has 59 regional centers with substantial knowledge of, and connections to, the domestic manufacturing sector. MEP uses their regional centers to “scout” for current or potential manufacturers of the product(s) submitted in a waiver request. In the course of this interagency collaboration, MEP has been able to find exact or partial matches for manufactured goods that EERE grantees had been unable to locate. As a result, in those cases, EERE was able to work with the grantees to procure American-made products rather than granting a waiver.
Upon receipt of completed waiver requests for the three products in the current waiver, EERE reviewed the information provided and submitted the relevant technical information to the MEP. The MEP then used their network of nationwide centers to scout for domestic manufacturers. The MEP reported that their scouting process did not locate any domestic manufacturers for these exact or equivalent items.
In addition to the MEP collaboration outlined above, the EERE Buy American Coordinator worked with other manufacturing stakeholders to scout for domestic manufacturing capacity or an equivalent product for each item contained in this waiver. EERE also conducted significant amounts of independent research to supplement MEP's scouting efforts, including utilizing the solar experts employed by the Department of Energy's National Renewable Energy Laboratory. EERE's research efforts confirmed the MEP findings that the goods included in this waiver are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The nonavailability determination is also informed by the inquiries and petitions to EERE from recipients of EERE Recovery Act funds, and from suppliers, distributors, retailers and trade associations—all stating that their individual efforts to locate domestic manufacturers for these items have been unsuccessful.
Specific technical information for the manufactured goods included in this non-availability determination is detailed below:
(1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure.
LED Candelabra or medium base, outdoor use, dimmable, mercury free, 2700 and/or 3000 Kelvin Correlated Color Temperature (CCT), 80+ Color Rendering Index (CRI), 5-25 watt Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure. Domestic manufacturers are working to enter the market in the near future, however, production cannot yet meet the needs of current projects. EERE is committed to assisting grantees to complete projects while supporting domestic manufacturing—thus this waiver will expire May 1, 2012.
(2&3) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet distance, UL certified.
The new LED fixtures represent a relatively new, emerging technology that can provide comparable light output at substantially lower energy levels. As a new technology, the number of manufacturers, though growing, is somewhat limited. Domestic manufacturers are working to enter the market in the near future, however, production cannot yet meet the needs of current projects. EERE is committed to assisting grantees to complete projects while supporting domestic manufacturing—thus this waiver will expire May 1, 2012.
In light of the foregoing, and under the authority of section 1605(b)(2) of Public Law 111-5 and Redelegation Order 00-002-01E, with respect to Recovery Act projects funded by EERE, I hereby issue a “determination of inapplicability” (a waiver under the Recovery Act Buy American provision) for: (1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure); (2) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and (3) 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet distance, UL certified. This waiver expires May 1, 2012.
Having established a proper justification based on domestic nonavailability, EERE hereby provides notice that on January 10, 2012, three (3) nationwide categorical waivers of section 1605 of the Recovery Act were issued as detailed
This waiver determination is pursuant to the delegation of authority by the Secretary of Energy to the Assistant Secretary for Energy Efficiency and Renewable Energy with respect to expenditures within the purview of his responsibility. Consequently, this waiver applies to all EERE projects carried out under the Recovery Act.
Public Law 111-5, section 1605.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).
Notice of limited public interest waiver.
The U.S. Department of Energy (DOE) is hereby granting a nationwide limited waiver of the Buy American requirements of section 1605 of the Recovery Act under the authority of section 1605(b)(1) (amended public interest waiver), with respect to donated manufactured goods.
Christine Platt Patrick, Weatherization and Intergovernmental Program, Office of Energy Efficiency and Renewable Energy (EERE), (202) 287-1553,
Under the authority of the Recovery Act, section 1605(b)(1), the head of a Federal department or agency may issue a “determination of inapplicability” (a waiver of the Buy American provisions) if the application of section 1605 would be inconsistent with the public interest. On April 25, 2011, the Secretary of Energy delegated the authority to make all inapplicability determinations to the Assistant Secretary for Energy Efficiency and Renewable Energy, for EERE Recovery Act projects.
Pursuant to this delegation, the Acting Assistant Secretary has determined that application of section 1605 restrictions would be inconsistent with the public interest for items donated (provided at zero cost) to EERE-funded Recovery Act projects.
This determination waives the Buy American requirements in EERE-funded Recovery Act projects for donated manufactured goods. This waiver Expires May 1, 2012.
Definitions—Donated means manufactured goods provided to the project at zero cost. These goods must not hold a caveat, expectation, or quid-pro-quo of any sort, nor may their donation bind the grant recipient in any way. The recipient, for example, may not agree to pay more for one item, so as to have another item donated, nor may they promise more business in the future in exchange for a donated item. The Contracting Officer and the Project Officer will be consulted to determine whether the goods qualify as donated; this will serve to prevent abuse of this waiver. This waiver applies only to the donated manufactured goods themselves. All funds used in the project are still subject to the Buy American requirements and other contract requirements.
The Buy American provision “prohibits use of recovery funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.” 2 CFR 176. However, in a number of cases, grant recipients and sub recipients have been able to secure offers of donation, for items already installed that are non-compliant with the Buy American provision of the Recovery Act. Offers of donation may free up the need to spend federal dollars that otherwise would have been spent on those donated items and that may also count towards the recipient's cost share (10 CFR § 600.224) for grants that require cost sharing. When donated items are used in a project, freeing up allocated Recovery Act funds, grantees will work with their Project Officers to allocate funds to other projects, or to broaden the existing project. The “freed-up” Recovery Act funds may not be used on the purchase of non-compliant manufactured goods in accordance with applicable laws.
For the reasons outlined above, I find that it is in the public interest to issue a waiver of the Recovery Act Buy American provisions that allows grantees to use donated manufactured goods in EERE funded projects. This waiver should not be used as a means to circumvent the Recovery Act Buy American provisions through encouraging recipients to knowingly accept non-compliant goods that would be used on a Recovery Act project to further leverage Recovery Act funds.
Issuance of this nationwide public interest waiver recognizes EERE's commitment to expeditious costing of Recovery Act dollars by enabling grantees and vendors to easily ascertain whether a project complies with the Buy American provision. Issuance of this waiver removes any need for EERE to issue a Recovery Act Buy American non-compliance finding and negates economic waste that would result by having a recipient uninstall or remove a donated good that is otherwise compliant with the Recovery Act Buy American provisions.
In light of the foregoing, and under the authority of section 1605(b)(1) of Public Law 111-5 and the Redelegation Order of April 25, 2011, with respect to Recovery Act projects funded by EERE, on December 6, 2011, the Assistant Secretary issued a new “determination of inapplicability” (a waiver under the Recovery Act Buy American provisions) for donated manufactured goods.
The Assistant Secretary reserves the right to revisit and amend this determination based on new information or new developments.
Public Law 111-5, section 1605.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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 corporate 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:
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 February 21, 2012.
A.
1.
B.
1.
1.
In connection with this application, Applicant also has applied to retain 100 percent of the voting shares of Pacific Trust Bank, fsb, Chula Vista, California, and thereby engage in operating a nonbank thrift subsidiary, pursuant to section 225.28(b)(4) of Regulation Y.
Department of Health and Human Services.
Notice.
This notice provides an update of the Department of Health and Human Services (HHS) poverty guidelines to account for last calendar year's increase in prices as measured by the Consumer Price Index.
Office of the Assistant Secretary for Planning and Evaluation, Room 404E, Humphrey Building, Department of Health and Human Services, Washington, DC 20201.
For information about how the guidelines are used or how income is defined in a particular program, contact the Federal, state, or local office that is responsible for that program. For information about poverty figures for immigration forms, the Hill-Burton Uncompensated Services Program, and the number of people in poverty, use the specific telephone numbers and addresses given below.
For general questions about the poverty guidelines themselves, contact Kendall Swenson or Gordon Fisher, Office of the Assistant Secretary for Planning and Evaluation, Room 404E, Humphrey Building, Department of Health and Human Services, Washington, DC 20201—telephone: (202) 690-7507—or visit
For information about the percentage multiple of the poverty guidelines to be used on immigration forms such as USCIS Form I-864, Affidavit of Support, contact U.S. Citizenship and Immigration Services at 1-(800) 375-5283.
For information about the Hill-Burton Uncompensated Services Program (free or reduced-fee health care services at certain hospitals and other facilities for persons meeting eligibility criteria involving the poverty guidelines), contact the Office of the Director, Division of Health Facilities, Health Resources and Services Administration, HHS, Room 10-105, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. To speak to a staff member,
For information about the number of people in poverty, visit the Poverty section of the Census Bureau's web site at
Section 673(2) of the Omnibus Budget Reconciliation Act (OBRA) of 1981 (42 U.S.C. 9902(2)) requires the Secretary of the Department of Health and Human Services to update the poverty guidelines at least annually, adjusting them on the basis of the Consumer Price Index for All Urban Consumers (CPI-U). The poverty guidelines are used as an eligibility criterion by the Community Services Block Grant program and a number of other Federal programs. The
As required by law, this update is accomplished by increasing the latest published Census Bureau poverty thresholds by the relevant percentage change in the Consumer Price Index for All Urban Consumers (CPI-U). The guidelines in this 2012 notice reflect the 3.2 percent price increase between calendar years 2010 and 2011. After this inflation adjustment, the guidelines are rounded and adjusted to standardize the differences between family sizes. The same calculation procedure was used this year as in previous years. (Note that these 2012 guidelines are roughly equal to the poverty thresholds for calendar year 2011 which the Census Bureau expects to publish in final form in September 2012.)
The poverty guidelines continue to be derived from the Census Bureau's current official poverty thresholds; they are not derived from the Census Bureau's new Supplemental Poverty Measure (SPM).
The following guideline figures represent annual income.
For families/households with more than 8 persons, add $3,960 for each additional person.
For families/households with more than 8 persons, add $4,950 for each additional person.
For families/households with more than 8 persons, add $4,550 for each additional person.
Separate poverty guideline figures for Alaska and Hawaii reflect Office of Economic Opportunity administrative practice beginning in the 1966-1970 period. (Note that the Census Bureau poverty thresholds—the version of the poverty measure used for statistical purposes—have never had separate figures for Alaska and Hawaii.) The poverty guidelines are not defined for Puerto Rico or other outlying jurisdictions. In cases in which a Federal program using the poverty guidelines serves any of those jurisdictions, the Federal office that administers the program is generally responsible for deciding whether to use the contiguous-states-and-DC guidelines for those jurisdictions or to follow some other procedure.
Due to confusing legislative language dating back to 1972, the poverty guidelines sometimes have been mistakenly referred to as the “OMB” (Office of Management and Budget) poverty guidelines or poverty line. In fact, OMB has never issued the guidelines; the guidelines are issued each year by the Department of Health and Human Services. The poverty guidelines may be formally referenced as “the poverty guidelines updated periodically in the
Some federal programs use a percentage multiple of the guidelines (for example, 125 percent or 185 percent of the guidelines), as noted in relevant authorizing legislation or program regulations. Non-Federal organizations that use the poverty guidelines under their own authority in non-Federally-funded activities also may choose to use a percentage multiple of the guidelines.
The poverty guidelines do not make a distinction between farm and non-farm families, or between aged and non-aged units. (Only the Census Bureau poverty thresholds have separate figures for aged and non-aged one-person and two-person units.)
Note that this notice does not provide definitions of such terms as “income” or “family,” because there is considerable variation in defining these terms among the different programs that use the guidelines. These variations are traceable to the different laws and regulations that govern the various programs. This means that questions such as “Is income counted before or after taxes?”, “Should a particular type of income be counted?”, and “Should a particular person be counted as a member of the family/household?” are actually questions about how a specific program applies the poverty guidelines. All such questions about how a specific program applies the guidelines should be directed to the entity that administers or funds the program, since that entity has the responsibility for defining such terms as “income” or “family,” to the extent that these terms are not already defined for the program in legislation or regulations.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Assessing the Feasibility of Disseminating Effective Health Center Products through Mobile Phone Applications.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by February 27, 2012.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395-6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act of 1995, this collection of information from users of work products and services initiated by the John M. Eisenberg Clinical Decisions and Communications Science Center (Eisenberg Center).
AHRQ is the lead agency charged with supporting research designed to improve the quality of healthcare, reduce its cost, improve patient safety, decrease medical errors, and broaden access to essential services. AHRQ's Eisenberg Center's mission is improving communication of findings to a variety of audiences (“customers”), including consumers, clinicians, and health care policy makers. The Eisenberg Center compiles research results into useful formats for customer stakeholders. The Eisenberg Center also conducts investigations into effective communication of research findings in order to improve the usability and rapid incorporation of findings into medical practice. The Eisenberg Center is one of three components of AHRQ's Effective Health Care (EHC) Program. The collections proposed under this clearance include activities to assess the feasibility of using specific media and awareness-raising processes to encourage consumers who are at risk for selected health problems for which EHC Program materials are available to access information about such materials using mobile phone technologies. The project will specifically focus on promoting awareness of eight consumer guides developed through the EHC Program. The guides are all published in English and Spanish-language versions. All of the guides are designed to help decision makers, including clinicians and health care consumers, use research evidence to maximize the benefits of health care, minimize harm, and optimize the use of health care resources.
The project will test the feasibility of using mobile telephone technology for the dissemination of EHC Program materials to underserved health consumer populations using: (a) Short message services (SMS), usually referred to as texting, that can be provided to people with basic cell phone service and texting support; and (b) mobile Web access that provides access to the Internet via a mobile interface.
Different methods and/or vehicles will be used to promote awareness of opportunities to obtain cell phone- or smart phone-based information about the availability of EHC Program materials including: (1) Wall posters in patient service areas of the three (3) participating clinics; (2) flyers about the products distributed in magazine racks and through patient kiosks in some areas of the clinics; (3) flyers/announcements given to patients at checkout from the clinic; and (4) health fairs convened to address general health issues, where the information can be provided. Promotional materials will invite potential users to send a specific text message with the keyword associated with the relevant health condition to the advertised number. Subjects will receive a response text with a brief message about the condition and an invitation to either (a) request a printed consumer guide or (b) access the mobile Web site to view the guide.
(1) Summarize marketing efforts in terms of total numbers of posters, flyers, and information sheets distributed through specific venues (
(2) Summarize the extent to which persons in targeted patient populations responded to marketing efforts;
(3) Assess patient satisfaction with: (a) The means by which patients were alerted as to the availability of EHC Program materials; (b) the methods patients used to request and access the EHC Program materials; and (c) the value and relevancy of the information that they obtained;
(4) Characterize perceptions of clinical care providers and clinical staff persons in terms of: (a) The value of efforts to promote patient awareness of EHC Program materials using marketing techniques described in this feasibility project; and (b) the effect of these efforts on workflow issues and related aspects of clinic operations.
This study is being conducted by AHRQ through its contractor, the Eisenberg Center—Baylor College of Medicine, pursuant to AHRQ's statutory authority to conduct and support research, and disseminate information, on healthcare and on systems for the delivery of such care, including activities with respect to both the quality, effectiveness, efficiency, appropriateness and value of healthcare services and clinical practice. 42 U.S.C. 299a(a)(1) and (4).
To achieve the goals of this project the following data collections will be implemented:
(1) Focus Groups with Clinicians. A focus group will be conducted at each of the three participating clinics during regularly scheduled internal clinic meetings, to determine how the introduction of marketing materials and related resources influenced, if at all, delivery of care in the clinical settings. Special emphasis will be placed on determining if introduction of the project materials changed the ways in which patients interacted with clinicians. It is expected that each focus
(2) Focus Groups with Support Staff. A focus group will be conducted with support staff working in each of the three participating clinics, during regularly scheduled meetings, to determine if the introduction of the project materials altered clinic workflows. It is expected that each focus group will include no more than 12 support staff (
(3) Patient Interviews. In-person interviews conducted immediately after the patient exits the clinic will be used to determine if patients: (a) Saw and understood the marketing materials (
(4) Feedback Questionnaire for Patients Requesting Mailed Guides. All persons that respond to the marketing materials by requesting any of the eight guides to be mailed to them will be asked to complete a brief paper questionnaire included with the guides. The purpose of the questionnaire is to assess the extent to which the guides were easy to read and understand, whether the guides provided the information they sought, and any suggestions for improving and delivering the guides.
(5) Feedback Questionnaire for Patients Visiting the Mobile Web Site. All persons that access the guides via the mobile Web site will be asked to complete a brief online questionnaire. Only subjects exposed to the promotion materials will receive the address of the mobile Web site during the text message conversation, and therefore we expect no other individuals to visit this site. The purpose of the questionnaire is to determine if the guides were useful, the mobile Web site was easy to use, whether they found the information they needed and experienced any difficulty in accessing the guides through their cell phone.
(6) Usage Log Data. Data from automated electronic log systems will be collected from two sources: (1) Mobile Commons, the contractor that manages the cell phone-related message delivery and cell phone-based communication; and (2) the Eisenberg Center at Baylor College of Medicine that manages the EHC Web site visits. Usage log data gathered from the cell phone service contractor will include: (1) Counts of text messages received from persons requesting information about consumer guides; (2) the distribution of message counts across originating clinics tracked through the use of distinctive call-in or short code numbers assigned to each clinic; and (3) the numbers and originating clinic-specific distributions of follow-up texts Because text communications will be date and time stamped, Eisenberg Center staff will be able to calculate mean durations in time from receipt of the initial messages and follow-ups, which may be useful in determining navigation patterns and suggesting connectivity barriers. Usage log data gathered from the mobile Web site will allow for identification of: (1) The number of visitors that originate from a specific uniform record locator (URL) associated with each clinic; (2) the duration of visits to the EHC Web site to gather desired information and explore other resources available through the Web site; (3) the number of pages viewed by each visitor; and (4) the number of downloads of the full report associated with each guide, which will also be made available. These data will be obtained using automated systems already in place, and no special effort will be needed to generate these data; this task is not included in the burden estimates in Exhibit 1 below.
The Eisenberg Center will determine the feasibility of this approach to encouraging patients and anyone else viewing the marketing materials to access information that may be helpful to them in understanding health care choices and engaging more fully in their own health care, and whether this approach should be pursued further. This information will be used to determine the feasibility of: (a) Mounting broader efforts to distribute consumer guides, as well as other EHC Program products, using mobile technologies as tools to heighten awareness of these resources by potential users who rely on mobile communication devices for information access; and (b) initiating additional studies to identify factors that encourage or deter effective use of increasingly pervasive communication modalities (
Exhibit 1 shows the estimated annualized burden for the respondents' time to participate in this research. Focus groups will be conducted with about 10 clinicians per each of the 3 participating clinics (30 total) and about 12 clinical support staff per clinic (36 total), and will last 45 minutes. Interviews will be conducted with about 100 patients per clinic (300 total) upon exit from the clinical visit, with each interview lasting about 15 minutes. The Feedback Questionnaire for the Mailed Guides will be completed by approximately 200 persons and will take 10 minutes to complete and the Feedback Questionnaire for the Mobile site will be completed by about 200 persons and also requires 10 minutes to complete. The total annual burden is estimated to be 191 hours. Exhibit 2 shows the estimated annualized cost burden associated with the respondent's time to participate in this research. The total annual cost burden is estimated to be $5,320.
The maximum cost to the Federal Government is estimated to be $203,531 annually. Exhibit 3 shows the total and annualized cost by the major cost components.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Nursing Home Survey on Patient Safety Culture Comparative Database.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by February 27, 2012.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395-6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act of 1995, AHRQ's
The Nursing Home SOPS and the Comparative Database are supported by AHRQ to meet its goals of promoting improvements in the quality and safety of health care in nursing home settings. The survey, toolkit materials, and preliminary comparative database results are all made available in the public domain along with technical assistance provided by AHRQ through its contractor at no charge to nursing homes, to facilitate the use of these materials for nursing home patient safety and quality improvement.
The goal of this project is to create the Nursing Home SOPS Comparative Database. This database will (1) allow nursing homes to compare their patient safety culture survey results with those of other nursing homes; (2) provide data to nursing homes to facilitate internal assessment and learning in the patient safety improvement process; and (3) provide supplemental information to help nursing homes identify their strengths and areas with potential for improvement in patient safety culture. De-identified data files will also be available to researchers conducting patient safety analysis. The database will include 42 items that measure 12 areas, or composites, of patient safety culture.
This study is being conducted by AHRQ through its contractor, Westat, pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and with respect to quality measurement and improvement, and database development. 42 U.S.C. 299a(a)(1) and (2), and (a)(8).
To achieve the goal of this project the following activities and data collections will be implemented:
(1) Nursing Home Eligibility and Registration Form—The purpose of this form is to determine the eligibility status and initiate the registration process for nursing homes seeking to voluntarily submit their NH SOPS data to the NH SOPS Comparative Database. The nursing home (or parent organization) point of contact (POC) will complete the form. The POC is either a corporate level health care manager for a Quality Improvement Organization (QIO), a survey vendor who contracts with a nursing home to collect their data, or a nursing home Director of Nursing or nurse manager. Many nursing homes are part of a QIO or larger nursing home or health system that includes many nursing home sites
(2) Data Use Agreement—The purpose of this form is to obtain authorization from nursing homes to use their voluntarily submitted NH SOPS data for analysis and reporting according to the terms specified in the Data Use Agreement (DUA). The nursing home POC will complete the form.
(3) Nursing Home Site Information Form—The purpose of this form is to obtain basic information about the characteristics of the nursing homes submitting their NH SOPS data to the NH SOPS Comparative Database (
(4) Data Submission—After the nursing home POC has completed the Nursing Home Eligibility and Registration Form, the Data Use Agreement and the Nursing Home Site Information Form they will submit their data from the NH SOPS to the NH SOPS Comparative Database.
Data from the AHRQ Nursing Home Survey on Patient Safety Culture are used to produce three types of products: (1) A Nursing Home SOPS Comparative Database Report that is produced periodically and made available in the public domain on the AHRQ Web site (see
Exhibit 1 shows the estimated annualized burden hours for the nursing home to participate in the Nursing Home SOPS Comparative Database. The POC completes a number of data submission steps and forms, beginning with completion of the online Nursing Home SOPS Database Eligibility and Registration form and Data Use Agreement, which will be completed for 85 nursing homes or groups of affiliated nursing homes annually. The Nursing Home Site Information Form will be completed for each individual nursing home; since each POC represents an average of 5 nursing homes a total of 425 Information Forms will be completed annually and requires about 5 minutes to complete. The POC will submit data for all of the nursing homes they represent which will take about 5 and
Nursing homes administer the AHRQ Nursing Home Survey on Patient Safety Culture on a periodic basis. Hospitals submitting to the Hospital SOPS Comparative Database administer the survey every 16 months on average. Similarly, the number of nursing home submissions to the database is likely to vary each year because nursing homes do not administer the survey and submit data every year. The 85 respondents/POCs shown in Exhibit 1 are based on an estimate of nursing homes submitting data in the coming years, with the following assumptions:
• 30 POCs for QIOs submitting on behalf of 10 nursing homes each.
• 5 POCs for vendors outside of QIOs submitting on behalf of 10 nursing homes each.
• 50 independent nursing homes submitting on their own behalf.
Exhibit 2 shows the estimated annualized cost burden based on the respondents' time to submit their data. The cost burden is estimated to be $21,152 annually.
The estimated annualized cost to the government for developing, maintaining, and managing the database and analyzing the data and producing reports is shown below. The cost is estimated to be $310,000 annually. The total cost over the three years of this information collection request is $930,000.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ' s estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Assessing the Feasibility of Disseminating Effective Health Care Products through a Shared Electronic Medical Record Serving Member Organization of a Health Information Exchange.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by February 27, 2012.
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve under the Paperwork Reduction Act of 1995 this collection of information from users of work products and services initiated by the John M. Eisenberg Clinical Decisions and Communications Science Center (Eisenberg Center).
AHRQ is the lead agency charged with supporting research designed to improve the quality of healthcare, reduce its cost, improve patient safety, decrease medical errors, and broaden access to essential services. AHRQ's Eisenberg Center's mission is improving communication of findings to a variety of audiences (“customers”), including consumers, clinicians, and health care policy makers. The Eisenberg Center compiles research results into useful formats for customer stakeholders. The Eisenberg Center also conducts investigations into effective communication of research findings in order to improve the usability and rapid incorporation of findings into medical practice. The Eisenberg Center is one of three components of AHRQ's Effective Health Care (EHC) Program. The collections proposed under this clearance include activities to assess the feasibility of disseminating materials developed by the Eisenberg Center through the use of an electronic medical record (EMR) shared by a network of clinical care providers that are part of a Health Information Exchange (HIE) operating in multiple sites in several states. Our Community Health Information Network (OCHIN) members include 30 clinical care organizations operating more than 230 primary care clinics in six states. Data will be gathered from three different OCHIN-member organizations representing a total of 10 primary care clinics. The information generated will be provided to AHRQ to guide decision making and planning for additional efforts to foster EHC Program product distribution via EMR prompting and product linkages.
(1) Identify facilitators and barriers to successful efforts to implement processes that: (a) Support use of EHC Program products by clinicians in practice, and (b) place relevant clinical information in the hands of patients and family members in languages and formats that are appropriate to patients' information needs;
(2) Examine ways in which EHC Program products can be used in concert with other support programs and products (
(3) Assess the extent to which EHC Program products are used (
(4) Document the perceived value of integrating EHC Program products into systems of care supported by an EMR system as self-reported by clinicians involved in direct care of patients and clinic support personnel who interact with patients.
This study is being conducted by AHRQ through its contractor, the Eisenberg Center—Baylor College of Medicine, pursuant to AHRQ's statutory authority to conduct and support research, and disseminate information, on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and clinical practice. 42 U.S.C. 299a(a)(1) and (4).
To achieve the goals of this project the following data collections will be implemented:
(1) Automated Data Capture from EMR Usage Logs. Electronic usage data will be collected to determine the extent to which EHC Program guides for clinicians and patients were accessed to support shared decision making and patient education. The data will be retrieved from the existing EMR-linked database operated by the Kaiser Permanente staff in their coordination of activities related to the OCHIN HIE. Data will include: (a) Number and frequency of retrieval of EHC resource materials; (b) specific types of materials retrieved; and (c) health topic or condition targeted in the EHC materials. These data will inform the development of follow-up questions to be administered to clinicians and patients in the interviews and surveys described below. Because the data will be obtained using automated systems already in place, no special effort will be needed to generate these data, and thus this task is not included in the burden estimates in Exhibits 1 and 2.
(2) Interviews with Clinicians. Interviews will be held with clinical service providers for the following purposes: (a) Obtain perceptions of the overall value, relevancy, currency and appropriateness of EHC Program products in addressing the health service needs of patients treated in clinical settings; (b) assess ease of use of the materials in terms of access via the EMR; (c) determine perceived success of efforts to employ EHC Program products and related materials in addressing the needs of patients with limited language skills and/or low literacy levels; and (d) describe the relative success of efforts to use the EHC Program products in concert with other tools (
(3) Interviews with Support Staff. Interviews will be held with non-clinical support staff to characterize perceptions of how the introduction of EHC Program products: (a) Affected clinic workflows and influenced the work that staff was required to do in supporting clinician-patient interactions; and (b) facilitated or impeded efforts to inform patients about actions they could take in being more fully involved in their own health care.
(4) Interviews with Patients. Interviews will be held with recruited patients to determine if they: (a) Viewed the EHC Program products that they were provided as useful to them in understanding their health issues; (b) were able to understand the EHC Program-related information that was provided to them sufficiently to take actions in their own health care; and (c) have suggestions about how the EHC Program materials could be changed or the delivery of them done in a different way to make the materials more useful and/or accessible to patients.
(5) Survey of Clinicians. A questionnaire will be administered to clinical care providers near the end of the study to gather quantitative data around their assessments of: (a) The relevancy of the EHC Program materials to the patients they serve; (b) the appropriateness of the products in addressing specific clinical issues; (c) the ease of use of the system created to provide access to EHC Program products through the EMR; and (d) overall ratings of the approach in addressing patient needs with regard to specific conditions addressed by the products available.
The interviews with clinicians, clinical staff, and patients will be conducted throughout the project period, approximately every three months with different sets of participants, to inform and refine delivery mechanisms and monitor progress.
This information will be used to determine the feasibility of: (a) Mounting broader efforts to distribute clinician and consumer guides, as well as other EHC products using EMRs as the primary vehicle for providing product access at the point of care; and (b) initiating additional studies to identify factors that encourage or deter effective integration of EHC products into care processes using electronic tools and care delivery support systems, like the EMR, that are increasingly common in clinical work settings.
Exhibit 1 shows the estimated annualized burden for the respondents' time to participate in this research. Three rounds of interviews will be conducted during the project period (each round of interviews to be held approximately every three months with separate sets of participants) to assess progress and adjust methods or refine materials as needed. Interviews will be conducted with 100 patients, 50 clinicians and 50 clinical support staff. Each interview is estimated to last no more than 30 minutes. All clinicians in each participating clinic will have access to the EMR and will be invited to participate in an online questionnaire. Approximately 200 clinicians will complete the 10-minute questionnaire.
Exhibit 2 shows the estimated annualized cost burden associated with the respondents' time to participate in this research. The total annual cost burden is estimated to be $6,274.
The maximum cost to the Federal Government is estimated to be $217,451 annually for two years.
Exhibit 3 shows the total and annualized cost by the major cost components.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for scientific information submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from medical device manufacturers of natriuretic peptide measurement assays. Scientific information is being solicited to inform our Comparative Effectiveness Review of Use of Natriuretic Peptide Measurement in the Management of Heart Failure, which is currently being conducted by the Evidence-based Practice Centers for the AHRQ Effective Health Care Program. Access to published and unpublished pertinent scientific information on this device will improve the quality of this comparative effectiveness review. AHRQ is requesting this scientific information and conducting this comparative effectiveness review pursuant to Section 1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108-173.
Submission Deadline on or before February 27, 2012.
Online submissions:
Robin Paynter, Research Librarian, Telephone: (503) 494-0147 or Email:
In accordance with Section 1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108-173, the Agency for Healthcare Research and Quality has commissioned the Effective Health Care (EHC) Program Evidence-based Practice Centers to complete a comparative effectiveness review of the evidence for use of natriuretic peptide measurement in the management of heart failure.
The EHC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by systematically requesting information (
This notice is a request for industry stakeholders to submit the following:
• A current product label, if applicable (preferably an electronic PDF file).
• Information identifying published randomized controlled trials and observational studies relevant to the clinical outcomes. Please provide both a list of citations and reprints if possible.
• Information identifying unpublished randomized controlled trials and observational studies relevant to the clinical outcomes. If possible, please provide a summary that includes the following elements: Study number, study period, design, methodology, indication and diagnosis, proper use instructions, inclusion and exclusion criteria, primary and secondary outcomes, baseline characteristics, number of patients screened/eligible/enrolled/lost to withdrawn/follow-up/analyzed, and effectiveness/efficacy and safety results.
• Registered ClinicalTrials.gov studies. Please provide a list including the ClinicalTrials.gov identifier, condition, and intervention.
Your contribution is very beneficial to this program. AHRQ is not requesting and will not consider marketing material, health economics information, or information on other indications. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter. In addition to your scientific
The contents of all submissions, regardless of format, will be available to the public upon request unless prohibited by law.
The draft of this review will be posted on AHRQ's EHC program Web site and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
1. What is the test performance of BNP and NT-proBNP for HF?
2. What are the optimal decision cut points for BNP and NT-proBNP to diagnose and exclude HF?
3. What determinants affect the test performance of BNP and NTproBNP (e.g., age, gender, comorbidity)?
1. What is the test performance of BNP and NT-proBNP for HF?
2. What are the optimal decision cut points for BNP and NT-proBNP to diagnose and exclude HF?
3. What determinants affect the test performance of BNP and NTproBNP (e.g., age, gender, comorbidity)?
Administration on Aging, HHS.
Notice.
The Administration on Aging (AoA) is announcing an opportunity for public comment on the proposed extension of an existing collection of information by the agency.
Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 26, 2012.
Submit electronic comments on the collection of information to:
Margaret Graves at (202) 357-3502 or
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
AoA estimates the burden of this collection of information as follows: Annual submission of the Program Performance Reports are due 90 days after the end of the budget period and final project period.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-7570 or send an
Racial and Ethnic Approaches to Community Health (REACH) US Evaluation—Revision — National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
From 2009-2011, CDC conducted annual risk factor surveys that tracked health trends among racial and ethnic minority groups (OMB No. 0920-0805, exp. 2/29/2012). The surveys were conducted in areas where community interventions were implemented as part of the Racial and Ethnic Approaches to Community Health across the U.S. (REACH US) program. The REACH US program is a national multilevel strategy to reduce and eliminate health disparities in racial and ethnic minorities. Priority areas for the program include breast and cervical cancer; cardiovascular disease; diabetes mellitus; adult/older adult immunization, hepatitis B, and/or tuberculosis; asthma; and infant mortality. Priority populations for the program are African American, American Indian, Alaska Native, Hispanic American, Asian American, and Pacific Islander citizens.
CDC is requesting OMB approval to conduct two additional cycles of data collection in 2012 and 2013. Risk factor information will be collected from a random sample of adults in 28 REACH US communities (900 individuals per community). After households have been selected through address-based sampling, health information will be collected through a self-administered, mailed questionnaire, or through interviews conducted by telephone or in-person with members of the selected households.
The estimated burden per response is 15 minutes. The surveys will help to assess the prevalence of various risk factors associated with chronic diseases, deficits in breast and cervical cancer screening and management, and deficits in adult immunizations. Survey results will be used for REACH US program evaluation and to assess progress towards the national goal of eliminating health disparities within minority populations.
OMB approval is requested for two years. Minor changes to the survey questions will be implemented, and adjustments will be made to the estimated number of respondents. Participation is voluntary and there are no costs to respondents other than their time. The total estimated burden hours are 9,460.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-7570 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; 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. Written comments should be received within 60 days of this notice.
Validation of an Occupational Safety and Health Questionnaire—New—National Institute for occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The mission of the National Institute for Occupational Safety and Health (NIOSH) is to promote safety and health at work for all people through research and prevention. Under Public Law 91-596, Section 20 and 22 (section 20-22, Occupational Safety and Health Act of 1970), NIOSH has the responsibility to conduct research to advance the health and safety of workers. In this capacity, NIOSH will administer a questionnaire designed to assess differences in approaches to and perspectives of workplace safety between American-born and Latino immigrant workers.
The rapid growth of Latino immigrant population in the United States has increased the demand for Spanish-language occupational safety and health training materials. Typically, this need has been met by translating existing, English-language training materials into Spanish rather than developing new materials specifically designed for
A major obstacle to designing and assessing the impact of occupational safety and health training interventions with Latino immigrants is the lack of a rigorously validated questionnaire addressing the issues believed to be contributing to the occupational health disparities experienced by this group. In order to better understand some of the factors that may be contributing to the persistent occupational health disparities between Latino immigrant and American-born workers, NIOSH is developing a questionnaire that focuses on important occupational safety and health iss