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Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that decreased the assessment rate established for the Administrative Committee for Pistachios (Committee) for the 2011-12 and subsequent production years from $0.0007 to $0.0005 per pound of assessed weight pistachios. The Committee locally administers the marketing order which regulates the handling of pistachios grown in California, Arizona, and New Mexico. The interim rule was necessary to allow the Committee to provide sufficient revenue to meet its expenses while maintaining a financial reserve within the limit authorized under the order.
Andrea Ricci or Kurt J. Kimmel, California Marketing Field Office, Marketing Order and Agreements Division, Fruit and Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Agreement and Order No. 983, both as amended (7 CFR part 983), regulating the handling of pistachios grown in California, Arizona, and New Mexico, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
Under the order, California, Arizona, and New Mexico pistachio handlers are subject to assessments, which provide funds to administer the order. Assessment rates as issued under the order are intended to be applicable to all assessable pistachios for the entire production year and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on September 1, 2011, and ends on August 31, 2012.
In an interim rule published in the
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 900 producers of pistachios in the production area and approximately 25 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000. (13 CFR 121.201) Based on Committee data, it is estimated that over 70 percent of the handlers ship less than $7,000,000 worth of pistachios and would thus be considered small business under the SBA definition. It is also estimated that over 80 percent of the growers in the production area produce less than $750,000 worth of pistachios and would thus be considered small businesses under the SBA definition.
This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2011-12 and subsequent production years from $0.0007 to $0.0005 per pound of assessed weight pistachios. At its July 21, 2011 meeting, the Committee unanimously recommended 2011-12 expenditures of $681,850 and an assessment rate of $0.0005 per pound of assessed weight pistachios. The assessment rate of $0.0005 is $0.0002 lower than the 2010-11 rate. Applying the $0.0005 per pound assessment rate to the Committee's 400,000,000 pound crop estimate should provide $200,000 in assessment income. Thus, income derived from handler assessments combined with the 2010-11 financial reserve, estimated interest income, and funds received from the CPRB is expected to provide sufficient revenues for the Committee to meet its expenses while maintaining a financial reserve within the limit authorized under the order.
According to NASS, the season average producer price was $1.67 in 2009 and $2.22 per pound of assessed weight pistachios in 2010. A review of historical information and preliminary information pertaining to the upcoming production year indicates that the grower price for the 2011-12 production year could range between $1.67 and $2.22 per pound of assessed weight pistachios. Therefore, the estimated assessment revenue for the 2011-12 production year as a percentage of total producer revenue during the 2011-12 production year could range between 0.030 and 0.023 percent.
This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.
In addition, the Committee's meeting was widely publicized throughout the California, Arizona, and New Mexico pistachio industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the July 21, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0215 Pistachios Grown in California. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.
This action imposes no additional reporting or recordkeeping requirements on either small or large California, Arizona, and New Mexico handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Comments on the interim rule were required to be received on or before November 28, 2011. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to:
This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the
Marketing agreements, Pistachios, Reporting and recordkeeping requirements.
Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that decreased the assessment rate established for the Prune Marketing Committee (Committee) for the 2011-12 and subsequent crop years from $0.27 to $0.22 per ton of salable dried prunes handled. The Committee locally administers the marketing order for dried prunes produced in California. The interim rule was necessary to allow the Committee to lower its assessment rate because of a substantial decrease in wage and salary expenses. The current excess funds carried forward along with the estimated interest income, combined with the funds generated from the decreased assessment rate and decreased crop is expected to provide adequate income to cover anticipated 2011-12 expenses.
Andrea Ricci or Kurt J. Kimmel, California Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Agreement No. 110 and Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
Under the order, California dried prune handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable California dried prunes for the entire crop year, and continue indefinitely until amended, suspended, or terminated. The Committee's crop year begins August 1, and ends on July 31.
In an interim rule published in the
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 800 producers of dried prunes in the California area and approximately 21 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000. (13 CFR 121.201)
Committee data indicates that about 64 percent of the handlers ship under $7,000,000 worth of dried prunes. Dividing the average dried prune crop value for 2010 reported by the National Agricultural Statistics Service (NASS) of $149,860,000 by the number of producers (800) yields an average annual producer revenue estimate of about $187,325. Thus, the majority of handlers and California dried prune producers may be classified as small entities.
This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2011-12 and subsequent crop years from $0.27 to $0.22 per ton of salable dried prunes. The Committee unanimously recommended 2011-12 expenditures of $46,497 and an assessment rate of $0.22 per ton of salable dried prunes for the 2011-12 crop year. The assessment rate of $0.22 is $0.05 lower than the rate previously in effect. Applying the $0.22 per ton assessment rate to the Committee's 122,000 ton estimate should provide $26,840 in assessment income. Thus, the current excess funds carried forward along with the estimated interest income, combined with funds generated from the decreased assessment rate and decreased crop is expected to provide adequate income to cover anticipated 2011-12 crop year expenses.
This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.
In addition, the Committee's meeting was widely publicized throughout the California dried prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 16, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.
This action imposes no additional reporting or recordkeeping requirements on either small or large California dried prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Comments on the interim rule were required to be received on or before October 31, 2011. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to
This action also affirms information contained in the interim rule concerning the Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. chapter 35), and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the
Marketing agreements, Plums, Prunes, Reporting and recordkeeping requirements.
Agricultural Marketing Service, USDA.
Final rule.
This rule amends the Mango Promotion, Research, and Information Order (Order) to increase the assessment rate on first handlers and importers of mangos from one-half cent per pound to three-quarters of a cent per pound. The increase is permitted under the Order, which is authorized by the Commodity Promotion, Research, and Information Act of 1996 (Act). The National Mango Board (Board), which administers the Order, recommended this action to ensure that the Board's research and promotion programs continue to be adequately funded.
Veronica Douglass, Marketing Specialist, Research and Promotion Division, Fruit and Vegetable Programs, AMS, U.S. Department of Agriculture, Stop 0244, Room 1406-S, 1400 Independence Avenue SW., Washington, DC 20250-0244; telephone: 888-720-9917; fax: 202-205-2800; or email:
This rule is issued under the Mango Promotion, Research, and Consumer Information Order (Order) [7 CFR part 1206]. The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-7425].
The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect.
Section 524 of the Act provides that the Act shall not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.
Under the Act, a person subject to an order may file a petition with the U.S. Department of Agriculture (Department) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and requesting a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Department will issue a ruling on the petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Department's final ruling.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities that would be affected by this rule. The purpose of the RFA is to fit regulatory action to scale on businesses subject to such action, so that small businesses will not be disproportionately burdened.
The Small Business Administration defines small agricultural producers as those having annual receipts of no more than $750,000, and small agricultural service firms as those having annual receipts of no more than $7 million (13 CFR part 121). First handlers and importers would be considered agricultural service firms, and the majority of mango producers, first handlers and importers would be considered small businesses. Although this criterion does not factor in additional monies that may be received by producers, first handlers and importers of mangos, it is an inclusive standard for identifying small entities.
First handlers and importers who market or import less than 500,000 pounds of mangos annually are exempt from the assessment. Mangos that are exported out of the United States are also exempt from assessment. In addition, domestic and foreign producers are not subject to assessment under the Order, but such individuals are eligible to serve on the Board along with importers and first handlers. Currently, fewer than five first handlers and 193 importers are subject to assessment under the Order.
Under the current Order, first handlers and importers of 500,000 pounds or more of mangos per year each pay a mandatory assessment of one-half cent per pound of mangos handled or imported. The amendment to the Order would increase the rate of assessment currently paid by first handlers and importers of mangos to three-quarters of a cent per pound. Exempt handlers and importers would remain exempt from assessment. While this amendment will have an economic impact on handlers and importers of more than 500,000 pounds of mangos per year, the impact is expected to be offset by the benefits to the mango industry. Assessment revenue is used by the Board to finance promotion, research, and information programs designed to increase consumer demand for mangos. Assessments at the current rate of one-half cent per pound generate about $3.4 million in annual revenue. The Order is administered by the Board under the Department's supervision.
According to the Board, additional revenue is needed to avoid reductions in the promotions budget and to increase investment in marketing and research programs. At its September 2009 meeting, the Board voted to propose a 50 percent increase in the mango assessment rate upon completion of the March 2010 referendum to determine whether mango handlers and importers favored continuation of the Order. The increase in the assessment rate is consistent with section 1206.42(b) of the Order, which permits modification of the assessment rate by the Board with the approval of the Secretary, after the first referendum is conducted.
Mango assessment collections began on January 3, 2005, however, Board activities did not begin until 2006. Consequently, the Board was able to grow a considerable reserve that was used to supplement annual assessment revenues from 2007 until 2009. In 2010, higher than expected assessment revenue made it possible for the Board to operate without exceeding the total assessments collected for that year and to begin 2011 with approximately $1.6 million in available resources. However, with 2011 spending projected at approximately $4.3 million and assessment income projected at approximately $3.2 million, the Board is expected to begin 2012 with a reserve of $505,244. With no extra funds available from reserves, and if the assessment rate is kept at the current level, the Board's budget would have to be decreased.
In 2010, an econometric study of the effects of the Board's promotion activities on U.S. mango demand was conducted by Dr. Ronald Ward of the University of Florida (2010 economic study). The study indicates that from 2005 through 2009, the value of mango imports to the U.S. grew from $169 million to $217 million. This is significant as the vast majority of mangos consumed in the U.S. are imported. The growth in value is the result of both higher prices and greater volumes imported. The study also found that the Board's activities have had a positive economic impact on the demand for mangos, both in attracting more buyers and in increasing the number of mangos purchased per buyer. According to the study, increased spending by the Board would correspond to increases in market penetration and the number of households purchasing mangos. Likewise, decreased spending would correspond to declines in both of those areas. Based on the analysis of these two
An increase of one quarter of a cent per pound in the mango assessment rate is expected to add an additional $1.6 million per year to the Board's assessment revenue. With the additional revenue collected, the Board intends to invest primarily in marketing and research programs. In addition, the Board would be able to establish a contingency fund to ensure consistent funding in the face of market instability.
The Board considered three alternatives prior to recommending that the assessment rate be increased. First, the Board considered reducing investment in its research program. However, postponing research projects, such as the human nutrition studies that may help the Board to develop health messages that increase demand for mangos, could hinder expansion of the U.S. mango market. Second, the Board considered limiting investment in programs designed to improve the quality of mangos available at the retail level. Delivering higher quality mangos to U.S. consumers is one of the Board's top priorities because higher quality often translates to higher demand. Third, the Board considered reducing funding for its marketing programs. Lowering the funding level for marketing programs would significantly reduce the Board's ability to conduct promotion and consumer marketing activities, thereby hindering its efforts to increase demand for mangos.
This rule does not impose additional recordkeeping requirements on first handlers, importers, or producers of mangos. First handlers or importers of less than 500,000 pounds of mangos per year are exempt.
There are no Federal rules that duplicate, overlap, or conflict with this rule. Additionally, section 517(c) of the Act states that not more than one assessment may be levied on a first handler or importer.
In accordance with OMB regulation [5 CFR part 1320] that implements information collection requirements imposed by the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520], there are no new requirements contained in this rule. The information collection requirements imposed by the Order have been previously approved under OMB control number 0581-0093. This rule does not result in a change to the information collection and recordkeeping requirements.
Under the Order, the Board administers a nationally coordinated program of research and promotion designed to strengthen the position of mangos in the marketplace and to establish, maintain, and expand U.S. markets for mangos. The program is financed by assessments on first handlers and importers of 500,000 pounds or more of mangos per year. The Order specifies that first handlers are responsible for submitting assessments to the Board on a monthly basis and maintaining records necessary to verify their reporting. Assessments paid by importers are collected and remitted to the Board by the U.S. Customs and Border Protection Service.
This rule increases the mango assessment rate, by one quarter of a cent per pound, to three quarters of a cent per pound. Currently, the assessment rate is one half cent per pound of mangos handled domestically or imported into the United States. In order to sustain and expand its promotion, research, and communications programs, the Board contends that additional revenue is required. The assessment rate increase is expected to generate an additional $1.6 million annually, depending on the volume of mangos handled in the United States or imported into the United States. In 2010, a total of 717,830,404 pounds of mangos were subject to assessment, resulting in approximately $3.6 million in assessment revenue. Less than one percent of the total assessments were from domestic handlers as the vast majority of assessments were collected from importers. The Board states that the assessment rate increase will enable it to make additional investments in its marketing and research programs. In addition, the Board states that some of the additional revenue may be used to establish a contingency fund to ensure consistent funding for its programs.
The Board, whose members represent domestic producers, first handlers, importers, and foreign producers, voted at its September 12, 2009 meeting to increase the assessment rate by one quarter of a cent per pound after the March 2010 continuance referendum. Of the members present at the meeting, 9 voted in favor and 4 opposed proposal of the assessment rate increase. The four Board members who voted against the assessment increase stated that the increase would be passed on to mango producers. The assessment will be imposed on first handlers and importers who pay assessments under the Order. Business decisions on how to manage assessments, including whether to pass back the cost of assessments to producers, are made by handlers and importers based on their respective business practices.
Accordingly, this action will amend the Order by changing the current assessment rate of one half cent per pound of mangos, as stated in section 1206.42(b), to three quarters of a cent per pound.
A proposed rule concerning this action was published in the
Of the 20 comments received regarding the proposed rule, 17 supported and three opposed the proposed amendment.
A total of 11 commenters supported the assessment rate increase based on positive results already achieved by the Board. Their comments stated that the Board has increased mango consumption and market penetration, fostered better relations between consumers and the mango industry, and educated consumers and industry stakeholders about mangos. One commenter noted that because of the Board's efforts, more than 4,000 in-store mango tasting events have been conducted, the number of restaurants offering mango dishes has grown, more benefits stemming from mango consumption have been discovered, and the mango industry has a united consumer marketing message. Two commenters noted specific support for the Board's health research activities.
Six commenters supported the assessment rate increase as a means of ensuring the Board's programs are adequately funded. Two commenters stated that the Board's programs are essential to maintain the growth in U.S. demand for mangos. One commenter also stated that the proposed increase in assessments is needed to keep up the momentum of the Board's current promotion and research activities. One commenter noted that any additional revenue should be used primarily for promotion and research programs rather than overhead expenses.
One supportive commenter noted that all Board expenditures must be approved by the Board members, who represent the interests of different regions and countries. Because the Board is comprised of members from six countries and the Commonwealth of Puerto Rico, the ability of the Board to come to a consensus on activities and expenditures is valuable to the entire mango industry. One comment cited the geographic diversity of the Board as a key reason for its success because a wide variety of viewpoints are represented by the Board members. The fact that the assessment increase is favored by a majority of Board members demonstrates the breadth of support for the increase from throughout the mango industry.
Another commenter stated that the proposed assessment increase has been discussed with all mango industry stakeholders, and is favored by organizations in Mexico, Peru, Guatemala, Haiti, Ecuador and Brazil. In order to determine whether foreign producers would support an assessment increase, the Board held informational meetings in each of the countries that export mangos to the United States. At these meetings, Board representatives explained the activities conducted with assessment funds and received positive feedback from attendees on the proposed assessment increase.
One of the comments in support of the assessment increase was received from a Mexican mango industry organization. In addition to their own comments, several commenters submitted correspondence from foreign agricultural organizations indicating their support for the assessment increase. Letters of support were received on behalf of organizations in Haiti, Peru, Guatemala, Ecuador, and Brazil.
One commenter opposed the assessment increase, stating that the Board can fulfill its objectives at its current funding level. As the Board stated in its proposal, without an increase in the assessment rate, spending on mango research and promotion programs would need to be reduced. As stated previously, the 2010 econometric study concluded that decreased spending on the Board's programs would correspond to declines in mango purchases.
One commenter opposed the assessment increase, stating that raising the assessment rate would harm mango importers already coping with higher freight rates and poor currency exchange rates. In response, another commenter argued that the assessment is an investment rather than an expense. This same commenter further stated that the investment in the Board would be used to improve market penetration, thereby improving returns to growers and shippers, and offsetting the higher costs. Additionally, the 2010 econometric study found that increased spending by the Board provides a large increase in revenues to importers.
One commenter opposed the assessment increase, stating that the current assessment provides a negative return on investment. Another commenter also noted that the Board should ensure that its investments are yielding reasonable returns. One commenter further stated that the assessment rate needed to sufficiently fund promotion programs would likely be 20 times the proposed rate of three quarters of a cent per pound. No evidence was offered to support this claim. According to the 2010 econometric study, every $1 currently spent by the Board adds an additional $7 to mango freight on board revenues.
The Department has considered all of the comments and is not making any changes to the proposed rule.
After consideration of all relevant material presented, the Board's recommendation, public comments and other information, it is hereby found that this rule, as published in the
Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Mango promotion, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 1206 is amended as follows:
7 U.S.C. 7411-7425 and 7 U.S.C. 7401.
(b) The assessment rate shall be
Board of Governors of the Federal Reserve System.
Final rule.
The Board is amending Regulation D, Reserve Requirements of Depository Institutions, to simplify the administration of reserve requirements. The final rule creates a common two-week maintenance period for all depository institutions, creates a penalty-free band around reserve balance requirements in place of carryover and routine penalty waivers, discontinues as-of adjustments related to deposit report revisions, replaces all other as-of adjustments with direct compensation, and eliminates the contractual clearing balance program. The amendments are designed to reduce the administrative and operational costs associated with reserve requirements for depository institutions, the Board, and Federal Reserve Banks.
Kara Handzlik, Senior Attorney (202) 452-3852, Legal Division, or Margaret Gillis DeBoer, Assistant Director (202) 452-3139, or Heather Wiggins, Senior Financial Analyst (202) 452-3674, Division of Monetary Affairs, or for questions regarding the Private Sector Adjustment Factor, Gregory Evans, Deputy Associate Director (202) 452-3945, or Brenda Richards, Manager (202) 452-2753, Division of Reserve Bank Operations and Payment Systems; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869; Board of Governors of the
Section 19 of the Federal Reserve Act (Act)
Currently, an institution may also enter into an agreement with its Reserve Bank under which the institution agrees to maintain a specific minimum balance in its account (referred to as a contractual clearing balance). Contractual clearing balances generate earning credits that the institution can use to offset service charges it incurs through its use of Federal Reserve priced services. In addition, an institution may also maintain excess balances. Excess balances are balances maintained by an institution in its account at a Reserve Bank that are in excess of the balances maintained to satisfy its reserve balance requirement and the contractual clearing balance requirement (if any).
Congress amended the Act in 2008 to authorize the Reserve Banks to pay interest on balances of eligible institutions at a rate or rates determined by the Board and not to exceed the general level of short-term interest rates.
On October 18, 2011, the Board requested public comment on proposed amendments to Regulation D and on several issues related to the methodology used to create the Private Sector Adjustment Factor (76 FR 64250 (Oct. 18, 2011)). One comment was received on the Private Sector Adjustment Factor; the comment will be addressed in a future
The Board received 43 comments in response to its request for comment on the Regulation D amendments. The responses consisted of comments from 4 depository institutions, 19 employees of financial institutions, 12 financial institution trade associations, and 8 individuals. Thirteen commenters addressed the proposed amendments to Regulation D; 8 of these 13 commenters also addressed issues not raised by the proposal. Thirty commenters addressed only issues not raised by the proposal. All but one of the 13 commenters on the proposed Regulation D amendments generally supported the proposal, but suggested (sometimes conflicting) amendments, provided support contingent on certain conditions, or requested that the Board delay the implementation date(s) of one or more of the proposed amendments. These comments are discussed in more detail below.
The majority of comments on issues not raised by the proposal concerned limits on the number of certain convenient transfers that may be made each month from savings deposit accounts. The Board most recently addressed this issue in its May 2009 Regulation D rulemaking (72 FR 25629, 25631 (May 29, 2009)) when it finalized amendments to increase from three to six the permissible monthly number of transfers or withdrawals from savings deposits by check, debit card, or similar order payable to third parties. As noted in the May 2009 rulemaking, the Board must impose reserve requirements on transaction accounts and not on other types of accounts, such as savings deposits, pursuant to section 19 of the Federal Reserve Act.
The Board proposed amendments to Regulation D that would implement the following four simplifications related to the administration of reserve requirements:
1. Create a common two-week maintenance period for all depository institutions;
2. Create a penalty-free band around reserve balance requirements in place of using carryover and routine penalty waivers;
3. Discontinue as-of adjustments related to deposit report revisions and replace all other as-of adjustments with direct compensation; and
4. Eliminate the contractual clearing balance program.
The Board also proposed to make changes to various terms used throughout Regulation D in order to clarify the meaning, enhance the accuracy, and ensure the consistent application of those terms. These proposed changes included replacing the term “required reserve balance” with “balances maintained to satisfy the reserve balance requirement,” adding a definition of “reserve balance requirement,” and making conforming revisions throughout the regulation.
After consideration of the comments received, the Board is adopting the amendments to Regulation D substantially as proposed, with minor technical changes. The Board considers the final amendments to Regulation D appropriate given the current approach to implementing monetary policy. If the Federal Reserve changes its monetary policy framework, which includes the payment of interest on balances held
As noted above, a depository institution satisfies its reserve balance requirement on average over a period of time that is known as a maintenance period. Currently, Regulation D provides for two types of maintenance periods: a one-week maintenance period and a two-week maintenance period. The determination of which maintenance period applies to an institution depends primarily on the frequency with which it is required to report its deposits to the Federal Reserve. The Board requires depository institutions to submit deposit reports at different frequencies depending on the amount of their reservable liabilities over the previous year. Depository institutions that have reservable liabilities above a certain amount (exemption amount) are required to submit deposit data either weekly or quarterly. Regulation D currently subjects weekly reporters to a two-week maintenance period and quarterly reporters to a one-week maintenance period. Institutions that have reservable liabilities below the exemption amount either submit deposit reports annually or are not required to report at all. Annual reporters and nonreporters with a contractual clearing balance are currently subject to a one-week maintenance period. Institutions that have neither reserve requirements nor clearing balance requirements receive interest payments at the excess balance rate because they do not maintain balances to satisfy reserve balance requirements.
From one year to another, some depository institutions switch reporting frequency because of changes in the levels of the institution's reservable liabilities. Specifically, some depository institutions may switch from a two-week maintenance period to a one-week maintenance period, or vice versa. In certain instances, depository institutions that become eligible to shift to a quarterly instead of weekly reporting frequency elect to remain at the higher reporting frequency in order to maintain the flexibility of satisfying reserve requirements over a two-week maintenance period instead of a one-week maintenance period.
The Board proposed to create a common two-week maintenance period for all depository institutions. Accordingly, the Board proposed to retain the two-week maintenance period requirement for weekly reporters in § 204.5(b)(1) of Regulation D, but to amend § 204.5(b)(2) to include quarterly reporters in the two-week maintenance period requirement. As set forth in the proposal, the common two-week maintenance period would tend to benefit depository institutions, Reserve Banks, and the Board by (1) providing greater flexibility to depository institutions that currently satisfy reserve balance requirements over a one-week maintenance period; (2) reducing unnecessary complexity in the existing maintenance period structure; (3) reducing administrative and operational costs for depository institutions that may otherwise have had to change maintenance periods when deposit reporting categories (and therefore length of maintenance period) changed; and (4) reducing the operational and administrative cost for Reserve Banks and the Board by eliminating business processes and controls associated with maintaining two maintenance periods.
The Board received 12 comments on the proposed common two-week maintenance period. Of these comments, 11 supported the creation of a common two-week maintenance period, and generally agreed that a common two-week maintenance period would reduce burden. One commenter expressed concern that annual reporters would face increased burden under the common two-week maintenance period if they were required to submit two weeks of data rather than a single day of data. The proposed common two-week maintenance period, however, does not change the frequency or the amount of data an institution must report, but rather changes the period of time over which an institution would satisfy its reserve balance requirement (if any). Annual reporters will continue to be required to report one day's worth of data, once a year, and have a reserve requirement of zero.
The Board is adopting the common two-week maintenance period as proposed. As noted in the proposal, for depository institutions that report their deposits weekly, the relationship between weekly reporting periods and two-week maintenance periods will be maintained in § 204.5(b)(1) of Regulation D. For depository institutions that report their deposits quarterly, the quarterly reporting periods will not change, but the relationship of quarterly reporting periods to two-week maintenance periods will be new. Revised § 204.5(b)(2) provides that, for quarterly reporters, each quarterly report will be used to calculate the reporter's reserve balance requirement for an interval of either six or seven consecutive two-week maintenance periods, depending on when the interval begins and ends. The interval will begin on the fourth Thursday following the end of each quarterly reporting period if that Thursday is the first day of a two-week maintenance period. If the fourth Thursday following the end of a quarterly reporting period is not the first day of a two-week maintenance period, then the interval will begin on the fifth Thursday following the end of the quarterly reporting period. The interval will end on the fourth Wednesday following the end of the subsequent quarterly reporting period if that Wednesday is the last day of a two-week maintenance period. If the fourth Wednesday following the end of the subsequent quarterly reporting period is not the last day of a two-week maintenance period, then the interval will conclude on the fifth Wednesday following the end of the subsequent quarterly reporting period.
Annual reporters and nonreporters will continue to receive interest on their average balances maintained with Reserve Banks; however, the interest payments will be calculated on the average balance maintained over a two-week period at the excess balance rate instead of a one-week period at the excess balance rate.
As noted above, Regulation D requires a depository institution to satisfy its reserve balance requirement on average over that depository institution's maintenance period. Currently, § 204.5(e) of Regulation D permits a depository institution that has a modest deficiency in its balances maintained to satisfy a reserve balance requirement over a given maintenance period to make up that deficiency by holding a higher level of balances in the subsequent maintenance period. Correspondingly, § 204.5(e) also permits
The Board proposed to create a penalty-free band around each depository institution's reserve balance requirement and to eliminate the carryover and routine penalty waiver provisions of Regulation D. Specifically, proposed § 204.2(gg) defined the top of the penalty-free band as an amount equal to an institution's reserve balance requirement plus an amount that is the greater of 10 percent of the institution's reserve balance requirement or $50,000. Proposed § 204.2(hh) defined the bottom of the penalty-free band as an amount equal to an institution's reserve balance requirement less an amount that is the greater of 10 percent of an institution's reserve balance requirement or $50,000. For pass-through correspondents, the Board proposed setting the dollar amount used to establish the top and bottom of the penalty-free band at an amount that is equal to the greater of 10 percent of the aggregate reserve balance requirement of the correspondent (if any) and all of its respondents or $50,000.
Proposed § 204.2(z) revised the definition of “excess balance” to mean the average balance maintained in a Reserve Bank account by or on behalf of an institution over a reserve maintenance period that exceeds the top of the penalty-free band, and proposed § 204.2(ff) defined “deficiency” as the bottom of the penalty-free band less the average balance maintained in a Reserve Bank account by or on behalf of an institution over a reserve maintenance period. Under the proposed structure, a depository institution that maintained balances that exceeded the reserve balance requirement, but fell within the band, would be remunerated at the interest rate paid on balances maintained to satisfy a reserve balance requirement. Balances that exceeded the top of the penalty-free band would be remunerated at the interest rate paid on excess balances. A depository institution that maintained balances below its reserve balance requirement would not be assessed a deficiency charge unless the balances fell below the bottom of the penalty-free band. The Board also proposed to remove § 204.5(e) and amend §§ 204.6(a) and (b) to eliminate the application of carryover and routine penalty waivers, respectively. Reserve Banks would, however, retain the authority to waive charges for deficiencies based on an evaluation of the circumstances in each individual case. Finally, the Board proposed conforming amendments to § 204.10(b)(1) and (b)(3), and (c) to replace “required reserve balances” with “balances up to the top of the penalty-free band.”
Six commenters generally supported the Board's proposal to create a penalty-free band around each depository institution's reserve balance requirement and to eliminate the carryover and routine waiver provisions of Regulation D. However, two of the commenters that supported this simplification requested different dollar amounts be used to establish the top and bottom of the penalty-free band. One commenter suggested a smaller dollar amount equal to the greater of $50,000 or 6 percent of a depository institution's reserve balance requirement. This commenter stated that institutions would be provided with sufficient flexibility if the band were defined in this manner. The other commenter requested the dollar amount be calculated similarly to the current carryover amount, using the greater of $50,000 or 4 percent of a depository institution's total reserve requirement (as opposed to 10 percent of its reserve balance requirement). This commenter was concerned that a band based on a reserve balance requirement may affect the Federal Reserve's ability to implement monetary policy in the event that all depository institutions' reserve balance requirements were zero.
The Board is adopting the penalty-free band as proposed, with one technical addition, and is eliminating the use of carryover and routine penalty waivers as proposed. The Board is clarifying that in no case will the bottom of the penalty-free band be less than zero. The Board believes that the proposed width of the penalty-free band will roughly replicate the amount of flexibility currently provided under the carryover provision. On average, reserve balance requirements are just under half of total reserve requirements. Therefore, the flexibility provided by the existing 4 percent carryover provision, when expressed in terms of reserve balance requirements, equates to roughly 10 percent of the reserve balance requirement for a typical depository institution. In addition, the Board believes a band constructed in terms of reserve balance requirements (rather than reserve requirements) is appropriate. Reserve balance requirements are more relevant than reserve requirements for implementing monetary policy and controlling the federal funds rate, because reserve balance requirements determine the amount of balances depository institutions are required to maintain in Reserve Bank accounts. The Board also acknowledges that the penalty-free band is applicable only in monetary policy frameworks where reserve balance requirements are non-zero. If in the future all reserve balance requirements were zero, which could result from either a significant change to the Federal Reserve's monetary policy framework or from depository institutions' limiting the amount of their reservable liabilities, the Board would reassess the penalty-free band and other aspects of the monetary policy framework accordingly.
The Board received four comments on the proposed elimination of the carryover provision. These commenters supported the elimination provided that interest is paid soon after a maintenance period ends on balances maintained to satisfy a reserve balance requirement and excess balances. The Board anticipates that the elimination of carryover will allow for faster crediting of interest payments.
Depository institutions are required to submit revisions to past deposit reports to correct for reporting errors. Currently, when those revisions result in a change in the depository institution's reserve balance requirement, an as-of adjustment is used to correct the depository institution's level of balances maintained. For example, if a reserve balance requirement for a given period is revised upwards, the as-of adjustment is used so that the depository institution
The Board proposed to eliminate the use of as-of adjustments for deposit report revisions. The payment of interest on balances maintained to satisfy reserve balance requirements essentially eliminates the need for as-of adjustments for deposit report revisions, because the interest rate paid effectively removes the implicit tax imposed by reserve requirements. The Board received no comments opposing the elimination of as-of adjustments for deposit report revisions and is adopting this provision as proposed. The Board notes that revisions to deposit reports to correct for reporting errors will still be required, because these reports are used to calculate and publish the monetary aggregates.
In addition to use for deposit report revisions, as-of adjustments are currently used for other purposes as well. These purposes include, but are not limited to, correcting transaction errors, recovering float, and penalizing an institution for a reserve deficiency in lieu of assessing monetary charges. An as-of adjustment for a transaction-based error corrects the average level of balances maintained by the depository institution to the level that would have resulted had the error not occurred. An as-of adjustment to recover float compensates the Reserve Bank for the float that is created by an institution's request to defer check and ACH charges for days in which the institution is closed. Finally, an as-of adjustment to penalize an institution for a reserve deficiency can be used instead of imposing an explicit monetary charge to the institution's Reserve Bank account.
The Board proposed replacing as-of adjustments for transaction-based errors with direct compensation (that is, either a debit or credit applied to an account to offset the effect of an error). The Board proposed replacing as-of adjustments for recovering float with explicit billing charges when float arises from temporary institution closings. Finally, the Board proposed eliminating the use of as-of adjustments for reserve deficiency penalties and relying solely on the assessment of explicit deficiency charges. The Board proposed to pay (or charge) an institution in these situations at a rate based on the federal funds rate.
Three commenters supported the replacement of as-of adjustments with direct compensation for all as-of adjustments other than those related to deposit report revisions, provided that institutions may continue to obtain detailed information on the error that occurred and the calculation of the compensation amount. These commenters stated that such detailed information is needed to verify the error, to reconcile accounts, and to allocate charges (or payments) by correspondents to the appropriate respondents. Five commenters supported the use of the federal funds rate to compensate depository institutions for transaction-based errors. No alternative compensation rate was suggested.
The Board is adopting the final rule as proposed.
As noted above, a depository institution may voluntarily agree with a Reserve Bank to maintain a level of balances in excess of the amount necessary to satisfy its reserve balance requirement. The actual amount that a depository institution maintains under such an agreement is known as a clearing balance.
The Board proposed to eliminate the contractual clearing balance program. The Board proposed to amend Regulation D to remove the definitions of “clearing balance” (§ 204.2(v)), “clearing balance allowance” (§ 204.2(w)), and “contractual clearing balance” (§ 204.2(x)), along with the removal of any other references to clearing balances and contractual clearing balances elsewhere in Regulation D.
Commenters generally supported the elimination of the contractual clearing balance program. However, one commenter stated that the elimination of the program may increase the possibility of overdrafts in depository institutions' Reserve Bank accounts if it was ever the case that the rate paid on balances held at Reserve Banks is below the federal funds rate and trading in the federal funds market is more active. This commenter suggested the Board announce its intent to continue the payment of interest on such balances at a rate equal to or greater than the federal funds rate.
The Board is adopting the elimination of the contractual clearing balance program as proposed. The elimination of the contractual clearing balance program will enhance the Federal Reserve's ability to carry out monetary policy by eliminating the complexities associated with maintaining different balance requirements for different kinds of balances and different kinds and levels of interest rates (explicit and implicit). The elimination of the contractual clearing balance program will not have any effect on a Reserve Bank's ability to require institutions to maintain a minimum level of balances in their Reserve Bank accounts in order for Reserve Banks to protect against overdrafts.
The Board proposed to eliminate the contractual clearing balance program and the use of as-of adjustments no earlier than the first quarter of 2012, and to implement a common maintenance period and the penalty-free band around reserve balance requirements no earlier than the third quarter of 2012. Four commenters stated that the proposed effective date for the elimination of
The Board will eliminate the contractual clearing balance program and the use of as-of adjustments earlier than it will implement the common maintenance period and the penalty-free band. Given that commenters generally noted that few operational changes would be necessary to prepare for the proposed amendments, the Board will eliminate the contractual clearing balance program on July 12, 2012. Also on this date, as-of adjustments will no longer be created and issuance of direct compensation will begin. This date is approximately 90 days after the publication of the final rule and is within the time period suggested by some commenters as appropriate to prepare for the amendments. The Board will implement the common two-week maintenance period, the penalty-free band, and the elimination of carryover and routine penalty waivers on January 24, 2013. The Board will provide public notice no later than November 1, 2012, if the January 24, 2013 date will be delayed.
The Regulatory Flexibility Act (the “RFA”) (5 U.S.C. 601
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In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget (OMB). Although the mandatory data collected on the deposits reporting forms
Banks, banking, Federal Reserve System, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Board is amending 12 CFR part 204 as follows:
12 U.S.C. 248(a), 248(c), 461, 601, 611, and 3105.
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The additions and revisions read as follows:
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The additions and revisions read as follows:
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(d) For institutions that file a report of deposits weekly, reserve requirements are computed on the basis of the institution's daily average balances of deposits and Eurocurrency liabilities during a 14-day computation period ending every second Monday.
(e) For institutions that file a report of deposits quarterly, reserve requirements are computed on the basis of the institution's daily average balances of deposits and Eurocurrency liabilities during the 7-day computation period that begins on the third Tuesday of March, June, September, and December.
(f) For all depository institutions, Edge and Agreement corporations, and United States branches and agencies of foreign banks, reserve requirements are computed by applying the reserve requirement ratios below to net transaction accounts, nonpersonal time deposits, and Eurocurrency liabilities of the institution during the computation period.
(a)(1) A depository institution, a U.S. branch or agency of a foreign bank, and an Edge or Agreement corporation shall satisfy reserve requirements by maintaining vault cash and, if vault cash does not fully satisfy the institution's reserve requirement, in the form of a balance maintained
(i) In the institution's account at the Federal Reserve Bank in the Federal Reserve District in which the institution is located, or
(ii) With a pass-through correspondent in accordance with § 204.5(d).
(b)(1) For institutions that file a report of deposits weekly, the balances maintained to satisfy reserve balance requirements shall be maintained during a 14-day maintenance period that begins on the third Thursday following the end of a given computation period.
(2) For institutions that file a report of deposits quarterly, the balances maintained to satisfy reserve balance requirements shall be maintained during each of the 7-day maintenance periods during the interval that begins on the fourth Thursday following the end of the institution's computation
(c) Cash items forwarded to a Federal Reserve Bank for collection and credit are not included in an institution's balance maintained to satisfy its reserve balance requirement until the expiration of the time specified in the appropriate time schedule established under Regulation J, “Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire” (12 CFR part 210). If a depository institution draws against items before that time, the charge will be made to its account if the balance is sufficient to pay it; any resulting deficiency in balances maintained to satisfy the institution's reserve balance requirement will be subject to the penalties provided by law and to the deficiency charges provided by this part. However, the Federal Reserve Bank may, at its discretion, refuse to permit the withdrawal or other use of credit given in an account for any time for which the Federal Reserve Bank has not received payment in actually and finally collected funds.
(d)(1) A depository institution, a U.S. branch or agency of a foreign bank, or an Edge or Agreement corporation with a reserve balance requirement (“respondent”) may select only one pass-through correspondent under this section, unless otherwise permitted by the Federal Reserve Bank in whose District the respondent is located. Eligible pass-through correspondents are Federal Home Loan Banks, the National Credit Union Administration Central Liquidity Facility, and depository institutions, U.S. branches or agencies of foreign banks, and Edge and Agreement corporations that maintain balances to satisfy their own reserve balance requirements which may be zero, in an account at a Federal Reserve Bank. In addition, the Board reserves the right to permit other institutions, on a case-by-case basis, to serve as pass-through correspondents.
(2) Respondents or correspondents may institute, terminate, or change pass-through correspondent agreements by providing all documentation required for the establishment of the new agreement or termination of or change to the existing agreement to the Federal Reserve Banks involved within the time period specified by those Reserve Banks.
(3) Balances maintained to satisfy reserve balance requirements of a correspondent's respondents shall be maintained along with the balances maintained to satisfy a correspondent's reserve balance requirement (if any), in a single commingled account of the correspondent at the Federal Reserve Bank in whose District the correspondent is located. Balances maintained in the correspondent's account are the property of the correspondent and represent a liability of the Reserve Bank solely to the correspondent, regardless of whether the funds represent the balances maintained to satisfy the reserve balance requirement of a respondent.
(4)(i) A pass-through correspondent shall be responsible for maintaining balances to satisfy its own reserve balance requirement (if any) and the reserve balance requirements of all of its respondents. A Federal Reserve Bank will compare the total reserve balance requirement to be satisfied by the correspondent with the total balance maintained to satisfy a reserve balance requirement by the correspondent for purposes of determining deficiencies, imposing or waiving charges for deficiencies and for other reserve maintenance purposes. A charge for a deficiency in the correspondent's account will be imposed by the Reserve Bank on the correspondent maintaining the account.
(ii) Each correspondent is required to maintain detailed records for each of its respondents that permit Reserve Banks to determine whether the respondent has provided a sufficient funds to the correspondent to satisfy the reserve balance requirement of the respondent. The correspondent shall maintain such records and make such reports as the Board or Reserve Bank may requires in order to ensure the correspondent's compliance with its responsibilities under this section and shall make them available to the Board or Reserve Bank as required.
(iii) The Federal Reserve Bank may terminate any pass-through agreement under which the correspondent is deficient in its recordkeeping or other responsibilities.
(iv) Interest paid on supplemental reserves (if such reserves are required under § 204.7) held by a respondent will be credited to the account maintained by the correspondent.
(e) Any excess or deficiency in an institution's balance maintained to satisfy its reserve balance requirement shall be carried over and applied against the balance maintained in the next maintenance period as specified in this paragraph. The amount of any such excess or deficiency that is carried over shall not exceed the greater of:
(1) The amount obtained by multiplying 0.04 times the depository institution's reserve requirement; or
(2) $50,000. Any carryover not offset during the next period may not be carried over to subsequent periods.
The additions and revisions read as follows:
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(2) For institutions that file a report of deposits quarterly, the balances maintained to satisfy reserve balance requirements shall be maintained during an interval of either six or seven consecutive 14-day maintenance periods, depending on when the interval begins and ends. The interval will begin on the fourth Thursday following the end of each quarterly reporting period if that Thursday is the first day of a 14-day maintenance period. If the fourth Thursday following the end of a quarterly reporting period is not the first day of a 14-day maintenance period, then the interval will begin on the fifth Thursday following the end of the quarterly reporting period. The interval will end on the fourth Wednesday following the end of the subsequent quarterly reporting period if that Wednesday is the last day of a 14-day maintenance period. If the fourth Wednesday following the end of the subsequent quarterly reporting period is not the last day of a 14-day maintenance period, then the interval will conclude on the fifth Wednesday following the end of the subsequent quarterly reporting period.
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(4)(i) A pass-through correspondent shall be responsible for maintaining balances to satisfy its own reserve balance requirement (if any) and the reserve balance requirements of all of its respondents. A charge for any deficiency in the correspondent's account will be imposed by the Reserve Bank on the correspondent maintaining the account.
(a) Deficiencies in a depository institution's balance maintained to satisfy its reserve balance requirement after application of the carryover
(b) Reserve Banks may waive the charges for deficiencies except when the deficiency arises out of a depository institution's gross negligence or conduct that is inconsistent with the principles and purposes of reserve requirements. Decisions by Reserve Banks to waive charges are based on an evaluation of the circumstances in each individual case and the depository institution's reserve maintenance record. For example, a waiver may be appropriate for a small charge or once during a two-year period for a deficiency that does not exceed a certain percentage of the depository institution's reserve requirement. If a depository institution has demonstrated a lack of due regard for the proper maintenance of balances to satisfy its reserve balance requirement, the Reserve Bank may decline to exercise the waiver privilege and assess all charges regardless of amount or reason for the deficiency.
(a) Federal Reserve Banks are authorized to assess charges for deficiencies at a rate of 1 percentage point per year above the primary credit rate, as provided in § 201.51(a) of this chapter, in effect for borrowings from the Federal Reserve Bank on the first day of the calendar month in which the deficiencies occurred. Charges shall be assessed on the basis of daily average deficiencies during each maintenance period.
(b) Reserve Banks may waive the charges for deficiencies based on an evaluation of the circumstances in each individual case.
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(1) For balances maintained to satisfy reserve balance requirements, at
(3) For balances maintained to satisfy reserve balance requirements, excess balances, and term deposits, at any other rate or rates as determined by the Board from time to time, not to exceed the general level of short-term interest rates. For purposes of this paragraph (b), “short-term interest rates” are rates on obligations with maturities of no more than one year, such as the primary credit rate and rates on term federal funds, term repurchase agreements, commercial paper, term Eurodollar deposits, and other similar instruments.
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(3) Balances maintained in an excess balance account will not satisfy any institution's reserve balance requirement.
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(2) A term deposit will not satisfy any institution's reserve balance requirement.
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(1) For balances up to the top of the penalty-free band, at
(3) For balances up to the top of the penalty-free band, excess balances, and term deposits, at any other rate or rates as determined by the Board from time to time, not to exceed the general level of short-term interest rates. For purposes of this subsection, “short-term interest rates” are rates on obligations with maturities of no more than one year, such as the primary credit rate and rates on term federal funds, term repurchase agreements, commercial paper, term Eurodollar deposits, and other similar instruments.
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Board of Governors of the Federal Reserve System.
Final rule.
The Board is amending Regulation J (Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers through Fedwire). The final rule eliminates references to “as-of adjustments” consistent with the Board's final amendments to Regulation D to simplify reserves administration; clarifies that an institution's Administrative Reserve Bank is deemed to have accepted deposit of a check or other item even if the institution sends the item directly to another Federal Reserve Bank; further clarifies that Regulation J continues to apply to a Fedwire funds transfer even if the funds transfer also meets the definition of “remittance transfer” under the Electronic Fund Transfer Act; and makes other conforming revisions.
This final rule is effective July 12, 2012.
Kara Handzlik, Senior Attorney (202) 452-
Subpart A of Regulation J governs the collection of checks and other items by the Federal Reserve Banks (Reserve Banks), including the types of checks or other items that may be sent to Reserve Banks, the order in which they are deemed to be handled, and the related warranties and indemnities. Subpart B of Regulation J sets forth the terms and conditions under which Reserve Banks receive and deliver payment orders from and to depository institutions over the Reserve Banks' Fedwire® Funds Service (Fedwire).
On October 18, 2011, the Board proposed amendments to Regulation J, including the elimination of references throughout Regulation J to a Reserve Bank's use of “as-of adjustments” (76 FR 64259). The Board proposed these amendments, in part, to conform to proposed amendments to Regulation D (12 CFR part 204) to simplify reserves administration.
The Board requested public comment on its October 2011 proposal to amend Regulation J. The Board received a total of eight comments from six financial institution trade associations, one depository institution, and one association of depository institutions. Commenters generally expressed support for the proposed amendments, although some were concerned with various aspects of the proposal and provided support contingent on certain conditions. These comments are discussed in more detail below.
Regulation J defines “as-of adjustment” for purposes of subpart B of the regulation as “a debit or credit, for reserve- or clearing-balance maintenance purposes only, applied to the reserve or clearing balance of a bank that either sends a payment order to a Federal Reserve Bank, or that receives a payment order from a Federal Reserve Bank, in lieu of an interest charge or payment.”
As noted above, the Board proposed to amend Regulation D to simplify the rules governing the administration of reserve requirements. The proposed Regulation D amendments included discontinuing as-of adjustments related to deposit report revisions and replacing all other as-of adjustments with direct compensation in the form of either a debit or credit applied to an account to offset the effect of an error. Consistent with its Regulation D proposal, the Board proposed to amend Regulation J §§ 210.3(a), 210.26(b), and 210.32(b) (along with the corresponding commentary) to eliminate references to as-of adjustments. Under the Board's Regulation J proposal, a Reserve Bank would continue to be able to pay direct compensation to a depository institution based on the federal funds rate in accordance with § 210.32(b), which incorporates by reference section 4A-506 of article 4A of the Uniform Commercial Code (UCC).
The Board received eight comments concerning the elimination of references to as-of adjustments. Commenters generally supported this amendment. One commenter requested that the debit or credit entry post directly to the account bearing the routing number of the original transaction and that the supporting documentation be forwarded directly to the depository institution holding that account. Two commenters conditioned their support of this change on Reserve Banks continuing to provide depository institutions with information on the error that occurred and the calculation of the compensation amount. With respect to compensation at the federal funds rate, one commenter stated that the federal funds rate should be used while another commenter stated that the rate for calculating the compensation amount should be at least equal to the federal funds rate. With respect to the elimination of § 210.32(b)(1), one commenter recommended that the Board eliminate this section entirely and allow the Reserve Banks to pay direct compensation based on the provisions of UCC section 4A-506, which is already incorporated into Regulation J.
The Board is adopting §§ 210.3(a), 210.26(b), and 210.32(b) as proposed (along with the corresponding commentary). These final amendments correspond to the Board's adoption of final amendments to Regulation D to discontinue as-of adjustments related to deposit report revisions and to replace all other as-of adjustments with direct compensation. Under the final rules, the federal funds rate will be used for the calculation of direct compensation. The Board believes that the federal funds rate is the appropriate rate for direct compensation in order to ensure that a
Section 210.4 of Regulation J governs the sending and handling of checks and other items sent to Reserve Banks. The Reserve Banks have long permitted institutions to send checks to a Reserve Bank other than the institution's Administrative Reserve Bank. These “direct sends” facilitate a more efficient check-collection process. Section 210.4 currently specifies the identity and order of the parties that are deemed to handle a check or other item, whether it is deposited electronically or in paper form, that is sent to a Reserve Bank for purposes of determining the rights and liabilities of the parties under Regulation J, Regulation CC (12 CFR part 229), and the UCC. Specifically, § 210.4 provides that, for an item sent to a Reserve Bank for collection, the following parties are deemed to have handled the item in the following order: (1) The initial sender; (2) the initial sender's Administrative Reserve Bank;
The Board proposed to amend § 210.4(b)(1)(ii) to clarify that, when an Administrative Reserve Bank is deemed to have “handled” a check sent directly to another Reserve Bank, such “handling” of an item includes accepting the item for deposit. Thus, for purposes of determining the rights and liabilities of parties that send and handle checks and other items sent to a Reserve Bank, the Administrative Reserve Bank is deemed to have accepted deposit of the item from the initial sender even if the sender sends the item directly to another Reserve Bank. The Board further proposed to clarify in § 210.4(b)(3) that, in addition to Regulation J, Regulation CC, and the UCC, the identity and order of the parties in § 210.4(b) also determines the relationships and the rights and liabilities of the parties for purposes of sections 13(1) and 16(13) of the Federal Reserve Act, which govern deposits to Reserve Banks.
The Board received six comments supporting this clarification and no comments opposing the clarification. The Board is adopting this clarification as proposed.
As noted above, Fedwire funds transfers are governed by subpart B of Regulation J. More specifically, subpart B of Regulation J currently “governs a funds transfer that is sent through Fedwire * * * even though a portion of the funds transfer is governed by the Electronic Fund Transfer Act [EFTA], but the portion of such funds transfer that is governed by the [EFTA] is not governed by” Regulation J.
To avoid a gap in coverage for Fedwire funds transfers, the Board proposed to amend § 210.25 of Regulation J to clarify that Regulation J continues to apply to “remittance transfers” as defined by the EFTA, to the extent there is not an inconsistency between Regulation J and section 919 of the EFTA (in which case section 919 would prevail). The proposed clarification was intended to ensure that the provisions of Regulation J, and therefore Article 4A of the UCC, apply to all Fedwire funds transfers, except to the extent that section 919 of the EFTA and rules established thereunder apply. The proposal included clarifications in the commentary to § 210.25 as well.
Commenters generally supported this clarification; however, three commenters requested that the Board coordinate with the Consumer Financial Protection Bureau (CFPB) before finalizing this rule due to outstanding issues regarding the “remittance transfer” final rule. Another commenter supported the proposal but pointed out that although this amendment will clarify the application of Regulation J for Fedwire transactions, the clarification will not apply to non-Fedwire wire transfers governed by Article 4A.
The Board is adopting the clarification to Regulation J as proposed. At the time the Board published the related proposal for this rulemaking, the CFPB had yet to finalize amendments to Regulation E to implement section 919 of the EFTA. The CFPB has since finalized this rulemaking.
The Board is making non-substantive changes in §§ 210.2, 210.10, and 210.11 to conform terminology to the final amendments in Regulation D concerning the use of various reserve-related terms. Regulation J § 210.2(a) currently defines the term “account” as an account with reserve or clearing balances on the books of a Federal Reserve Bank. Consistent with the Regulation D final rulemaking, the Board is amending § 210.2(a) to refer simply to balances on the books of a Federal Reserve Bank. In addition, Regulation J §§ 210.10 and 210.11, which concern the availability of credit to depository institutions, currently refer to “reserve.” Section 210.11(a), for example, states that a Reserve Bank shall provide credit of a noncash item when it receives payment in actually and finally collected funds and that the amount of such noncash item “is counted as reserve for purposes” of Regulation D. Consistent with the final amendments to Regulation D, the Board is amending §§ 210.10(a) and 210.11(a), (b), and (c) by replacing the term “reserve” with “balance maintained to satisfy a reserve balance requirement.”
The Board proposed that the effective date for the elimination of references to as-of adjustments be the same as the effective date of the corresponding amendments to Regulation D (no earlier than the first quarter of 2012). The Board proposed an effective date of 30 days after adoption of the final rule for the other clarifications. The Board received three comments concerning the proposed effective dates. Two of these commenters requested that the effective date of the changes be staggered, with a delayed effective date for the first change of at least nine months. One of these commenters stated that the elimination of references to “as-of adjustments” be made in conjunction with the changes in Regulation D and made effective no earlier than the first quarter of 2013. This commenter also recommended that the two clarifications be made effective no earlier than the first quarter of 2013 because banks have already established their change management plans for 2012 and the clarifications will require additional changes to policies and procedures.
The Board is setting the effective date for the elimination of “as-of adjustments” and changes to reserve terminology as July 12, 2012. This is the same effective date as that which has been finalized for the corresponding amendments to Regulation D. The Board is setting the effective date for the other two clarifications also as July 12, 2012. Given that these amendments will not require institutions to take any action or incur any cost, the Board believes this date is appropriate.
As a matter of policy, the Board subjects all operational and legal changes that could have a substantial effect on payment system participants to a competitive impact analysis.
The final amendments that eliminate the use of as-of adjustments require Reserve Banks to pay compensation in the form of explicit interest under UCC Article 4A-506, as is required of private sector service providers. The final amendments to section 210.4, clarifying the status of the Administrative Reserve Bank of a sender of a check, does not affect the competitive position of the Reserve Banks vis-à-vis private-sector service providers. With respect to the final amendments to section 210.25 (clarifying the applicability of Regulation J to remittance transfers as defined in the Electronic Fund Transfer Act), private-sector funds transfer systems may have the ability to adopt clearing-house rules that will vary the Uniform Commercial Code, although the extent to which this variation may occur remains unclear. Nevertheless, the Board does not believe this difference in certainty with respect to a small subset of funds transfers will have a material adverse effect on the ability of other service providers to compete with the Reserve Banks. Therefore, as noted in the proposal, the Board does not believe the amendments to Regulation J will have any direct and material adverse effect on the ability of other service providers to compete with the Reserve Banks.
Congress enacted the Regulatory Flexibility Act (the “RFA”) (5 U.S.C. 601
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In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget (OMB). No collections of information pursuant to the PRA are contained in the final rule. The Board received no comments on this analysis.
Banks, banking, Federal Reserve System.
For the reasons set forth in the preamble, the Board is amending Regulation J, 12 CFR part 210, as follows:
12 U.S.C. 248(i), (j), and (o), 342, 360, 464, 4001-4010, and 5001-5018.
(a)
(a)
(a)
(b)
(i) The initial sender;
(ii) The initial sender's administrative Reserve Bank (which is deemed to have accepted deposit of the item from the initial sender);
(iii) The Reserve Bank that receives the item from the initial sender (if different from the initial sender's administrative Reserve Bank); and
(iv) Another Reserve Bank, if any, that receives the item from a Reserve Bank.
(2) A Reserve Bank that is not described in paragraph (b)(1) of this section is not a person that handles an item and is not a collecting bank with respect to an item.
(3) The identity and order of the parties under paragraph (b)(1) of this section determine the relationships and the rights and liabilities of the parties under this subpart, part 229 of this chapter (Regulation CC), section 13(1) and section 16(13) of the Federal Reserve Act, and the Uniform Commercial Code. An initial sender's administrative Reserve Bank that is deemed to accept an item for deposit or handle an item is also deemed to be a sender with respect to that item. The Reserve Banks that are deemed to handle an item are deemed to be agents or subagents of the owner of the item, as provided in section 210.6(a) of this subpart.
(c)
(a) Each Reserve Bank shall include in its operating circulars a time schedule for each of its offices indicating when the amount of any cash item or returned check received by it is counted toward the balance maintained to satisfy a reserve balance requirement for purposes of part 204 of this chapter (Regulation D) and becomes available for use by the sender or paying or returning bank. The Reserve Bank that holds the settlement account shall give either immediate or deferred credit to a sender, a paying bank, or a returning bank (other than a foreign correspondent) in accordance with the time schedule of the receiving Reserve Bank. A Reserve Bank ordinarily gives credit to a foreign correspondent only when the Reserve Bank receives payment of the item in actually and finally collected funds, but, in its discretion, a Reserve Bank may give immediate or deferred credit in accordance with its time schedule.
(a)
(b)
(c)
(b) * * *
(1) This subpart incorporates the provisions of article 4A set forth in appendix B to this subpart. In the event of an inconsistency between the provisions of the sections of this subpart and appendix B to this subpart, the provisions of the sections of this subpart shall prevail. In the event of an inconsistency between the provisions this subpart and section 919 of the Electronic Fund Transfer Act, section 919 of the Electronic Fund Transfer Act shall prevail.
(3) This subpart governs a funds transfer that is sent through Fedwire, as provided in paragraph (b)(2) of this section, even though a portion of the funds transfer is governed by the Electronic Fund Transfer Act, but the portion of such funds transfer that is governed by the Electronic Fund Transfer Act (other than section 919 governing remittance transfers) is not governed by this subpart.
(b) * * *
(1) A Federal Reserve Bank shall satisfy its obligation, or that of another Federal Reserve Bank, to pay compensation in the form of interest under article 4A by paying compensation in the form of interest to its sender, its receiving bank, its beneficiary, or another party to the funds transfer that is entitled to such payment, in an amount that is calculated in accordance with section 4A-506 of article 4A.
(2) If the sender or receiving bank that is the recipient of interest payment is not the party entitled to compensation under article 4A, the sender or receiving bank shall pass through the benefit of the interest payment by making an interest payment, as of the day the interest payment is effected, to the party entitled to compensation. The interest payment that is made to the party entitled to compensation shall not be less than the value of the interest payment that was provided by the Federal Reserve Bank to the sender or receiving bank. The party entitled to compensation may agree to accept compensation in a form other than a direct interest payment, provided that such an alternative form of compensation is not less than the value of the interest payment that otherwise would be made.
The revisions read as follows:
(b)
(2) The scope of the applicability of a funds-transfer system rule under article 4A is specified in section 4A-501(b), and the scope of the choice of law provision is specified in section 4A-507(c). Under section 4A-507(c), a choice of law provision is binding on the participants in a funds-transfer system and certain other parties having notice that the funds-transfer system might be used for the funds transfer and of the choice of law provision. The Uniform Commercial Code provides that a person has notice when the person has actual knowledge, receives notification, or has reason to know from all the facts and circumstances known to the person at the time in question. (See UCC § 1-201(25).) However, under sections 4A-507(b) and 4A-507(d), a choice of law by agreement of the parties takes precedence over a choice of law made by funds-transfer system rule.
(3) If originators, receiving banks, and beneficiaries that are not in privity with a Federal Reserve Bank have the notice contemplated by Section 4A-507(c) or if those parties agree to be bound by subpart B of this part, subpart B of this part generally would apply to payment orders between those remote parties, including participants in other funds-transfer systems. For example, a funds transfer may be sent from an originator's bank through a funds-transfer system other than Fedwire to a receiving bank which, in turn, sends a payment order through Fedwire to execute the funds transfer. Similarly, a Federal Reserve Bank may execute a payment order through
(4) Under section 4A-108, article 4A does not apply to a funds transfer, any part of which is governed by the Electronic Fund Transfer Act (EFTA) (15 U.S.C. 1693
(5) Section 919 of the EFTA, however, governs “remittance transfers,” which may include Fedwire funds transfers. Section 919 of the EFTA sets out the obligations of remittance transfer providers with respect to consumer senders of remittance transfers. Section 919 of the EFTA generally does not affect the rights and obligations of financial institutions involved in a remittance transfer. To the extent that a Fedwire funds transfer is a “remittance transfer” governed by section 919 of the EFTA, it continues to be governed by subpart B, except that, in the event of an inconsistency between the provisions of subpart B and section 919 of the EFTA, section 919 of the EFTA shall prevail. For example, a consumer may initiate a remittance transfer governed by EFTA section 919 from the consumer's account at a depository institution, and the depository institution may initiate that transfer by sending a payment order to a Reserve Bank through the Fedwire funds system. If the consumer subsequently exercised the right to cancel the remittance transfer and obtain a refund under the terms of EFTA section 919, the depository institution would be required to comply with section 919 even if the institution does not have a right to reverse the payment order sent to the Reserve Bank under subpart B.
(6) Finally, section 4A-404(a) provides that a beneficiary's bank is obliged to pay the amount of a payment order to the beneficiary on the payment date unless acceptance of the payment order occurs on the payment date after the close of the funds-transfer business day of the bank. The Expedited Funds Availability Act provides that funds received by a bank by wire transfer shall be available for withdrawal not later than the banking day after the business day on which such funds are received (12 U.S.C. 4002(a)). That act also preempts any provision of state law that was not effective on September 1, 1989, that is inconsistent with that act or its implementing Regulation CC (12 CFR 229). Accordingly, the Expedited Funds Availability Act and Regulation CC may preempt section 4A-404(a) as enacted in any state. In order to ensure that section 4A-404(a), or other provisions of article 4A, as incorporated in subpart B of this part, do not take precedence over provisions of the Expedited Funds Availability Act, this section provides that where subpart B of this part establishes rights or obligations that are also governed by the Expedited Funds Availability Act or Regulation CC, the Expedited Funds Availability Act or Regulation CC provision shall apply and subpart B of this part shall not apply.
(i)
(2) In some cases, messages sent through Fedwire, such as certain requests for credit transfer, may be payment orders under article 4A, but are not treated as payment orders under subpart B because they are not an instruction to a Federal Reserve Bank to pay money.
(3) This subpart and article 4A govern a payment order even though the originator's or beneficiary's account may be a consumer account established primarily for personal, family, or household purposes. Under section 4A-108, article 4A does not apply to a funds transfer any part of which is governed by the Electronic Fund Transfer Act. That act, and Regulation E (12 CFR part 205) implementing it, do not apply to funds transfers through Fedwire (see 15 U.S.C. 1693a(6)(B) and 12 CFR 205.3(b)), except that section 919 of the Electronic Fund Transfer Act may govern a Fedwire funds transfer that is a “remittance transfer.” Such remittance transfers that are Fedwire funds transfers continue to be governed by this subpart. Thus, this subpart applies to all funds transfers through Fedwire even though some such transfers involve originators or beneficiaries that are consumers. (See also § 210.25(b) and accompanying commentary.)
(b)
(2) Interest would be calculated in accordance with the procedures specified in section 4A-506(b). Similarly, compensation in the form of explicit interest will be paid to government senders, receiving banks, or beneficiaries described in § 210.25(d) if they are entitled to interest under this subpart. A Federal Reserve Bank may also, in its discretion, pay explicit interest directly to a remote party to a Fedwire funds transfer that is entitled to interest, rather than providing compensation to its direct sender or receiving bank.
(3) If a bank that received an explicit interest payment is not the party entitled to interest compensation under article 4A, the bank must pass the benefit of the explicit
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Boeing Model 777F airplane. This airplane, as modified by the FedEx Express Corporation, will have a novel or unusual design feature associated with an advanced, enhanced flight vision system (EFVS). The EFVS consists of a head-up display (HUD) system modified to display forward-looking infrared (FLIR) imagery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is March 22, 2012. We must receive your comments by May 14, 2012.
Send comments identified by docket number FAA-2012-0352 using any of the following methods:
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Dale Dunford, FAA, Transport Standards Staff, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2239; fax 425-227-1320; email:
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On November 17, 2010, the FedEx Express Corporation applied for a supplemental type certificate for the installation and operation of a HUD and an EFVS in the Boeing Model 777F. The original type certificate for the 777F airplanes is T00001SE, Revision 28, dated August 5, 2011.
The Boeing Model 777F is a transport-category, cargo-carrying airplane that operates with a crew of two. It is powered by two General Electric GE90-110B1 or GE90-115B turbofan engines, has a maximum gross takeoff weight of 766,800 pounds, and a maximum range of 4,900 nautical miles.
The electronic infrared image displayed between the pilot and the forward windshield represents a novel or unusual design feature in the context of Title 14, Code of Federal Regulations (14 CFR) 25.773. Section 25.773 was not written in anticipation of such technology. The electronic image has the potential to enhance the pilot's awareness of the terrain, hazards, and airport features. At the same time, the image may partially obscure the pilot's direct outside compartment view. Therefore, the FAA needs adequate safety standards to evaluate the EFVS to determine that the imagery provides the intended visual enhancements without undue interference with the pilot's outside compartment view. The FAA's intent is that the pilot will be able to use a combination of the information seen in the image and the natural view of the outside scene, as seen through the image, as safely and effectively as a pilot compartment view without an enhanced vision system (EVS) image, and is compliant with § 25.773.
Although the FAA has determined that the existing regulations are not adequate for certification of EFVSs, it believes that EFVSs could be certified through application of appropriate safety criteria. Therefore, the FAA has determined that special conditions should be issued for certification of EFVSs to provide a level of safety equivalent to that provided by the standard in § 25.773.
The term “enhanced vision system” (EVS) in this document refers to a system comprised of a head-up display (HUD), imaging sensor(s), and avionics interfaces
On January 9, 2004, the FAA published revisions to operational rules in 14 CFR parts 1, 91, 121, 125, and 135 to allow aircraft to operate below certain altitudes during a straight-in instrument approach while using an EFVS to meet visibility requirements.
Prior to this rule change, the FAA issued Special Conditions No. 25-180-SC, which applied to an EVS installed on Gulfstream Model G-V airplanes. Those special conditions addressed the requirements for the pilot compartment view and limited the scope of the intended functions permissible under the operational rules at the time. The intended function of the EVS imagery was to aid the pilot during the approach and allow the pilot to detect and identify the visual references for the intended runway down to 100 feet above the touchdown zone. However, the EVS imagery alone was not to be used as a means to satisfy visibility requirements below 100 feet.
The recent operational rule change expands the permissible application of certain EVSs that are certified to meet the new EFVS standards. The new rule allows the use of an EFVS for operation below the minimum descent altitude or decision height to meet new visibility requirements of § 91.175(l). The purpose of these special conditions is not only to address the issue of the “pilot compartment view,” as was done by Special Conditions No. 25-180-SC, but also to define the scope of intended function consistent with § 91.175(l) and (m).
Under the provisions of 14 CFR 21.101, the FedEx Express Corporation must show that the Boeing Model 777F, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference are listed in Type Certificate Data Sheet No. T00001SE, Revision 28, dated August 5, 2011, which covers all variants of the Boeing 777 airplanes. In addition, the certification basis includes certain special conditions and exemptions that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777F because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.
In addition to the applicable airworthiness regulations and special conditions, the Model 777F must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19 in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Boeing Model 777F will incorporate the following novel or unusual design feature: An EFVS that projects a video image derived from a FLIR camera through the HUD. The EFVS image is projected in the center of the “pilot compartment view,” which is governed by § 25.773. The image is displayed with HUD symbology and overlays the forward outside view. Therefore, § 25.773 does not contain appropriate safety standards for the EFVS display.
Operationally, during an instrument approach, the EFVS image is intended to enhance the pilot's ability to detect and identify “visual references for the intended runway” [see § 91.175(l)(3)] to continue the approach below decision height or minimum descent altitude. Depending on atmospheric conditions and the strength of infrared energy emitted and/or reflected from the scene, the pilot can see these visual references in the image better than they can be seen through the window without EFVS.
Scene contrast detected by infrared sensors can be much different from that detected by natural pilot vision. On a dark night, thermal differences of objects which are not detectable by the unaided eye are easily detected by many imaging infrared systems. On the other hand, contrasting colors in visual wavelengths may be distinguished by the naked eye but not by an imaging infrared system. Where thermal contrast in the scene is sufficiently detectable, the pilot can recognize shapes and patterns of certain visual references in the infrared image. However, depending on conditions, those shapes and patterns in the infrared image can appear significantly different than they would with normal vision. Considering these factors, the EFVS image needs to be evaluated to determine that it can be accurately interpreted by the pilot.
The EFVS image may improve the pilot's ability to detect and identify items of interest. However, the EFVS needs to be evaluated to determine that the imagery allows the pilot to perform the normal flightcrew duties and adequately see outside the window through the image, consistent with the safety intent of § 25.773(a)(2).
Compared to a HUD displaying the EFVS image and symbology, a HUD that only displays stroke-written symbols is easier to see through. Stroke symbology illuminates a small fraction of the total display area of the HUD, leaving much of that area free of reflected light that could interfere with the pilot's view out the window through the display. However, unlike stroke symbology, the video image illuminates most of the total display area of the HUD (approximately 30 degrees horizontally and 25 degrees vertically), which is a significant fraction of the pilot compartment view. The pilot cannot see around the larger illuminated portions of the video image, but must see the outside scene through it.
Unlike the pilot's external view, the EFVS image is a monochrome, two-dimensional display. Many, but not all, of the depth cues found in the natural view are also found in the image. The quality of the EFVS image and the level of EFVS infrared-sensor performance could depend significantly on conditions of the atmospheric and external light sources. The pilot needs adequate control of sensor gain and image brightness, which can significantly affect image quality and transparency (i.e., the ability to see the outside view through the image). Certain system characteristics could create distracting and confusing display artifacts. Finally, because this is a sensor-based system intended to
• An acceptable degree of image transparency;
• Image alignment;
• Lack of significant distortion; and
• The potential for pilot confusion or misleading information.
Section 25.773, Pilot compartment view, specifies that “Each pilot compartment must be free of glare and reflection that could interfere with the normal duties of the minimum flight crew * * *.” In issuing § 25.773, the FAA did not anticipate the development of the EFVS and does not consider that § 25.773 adequately addresses the specific issues related to such a system. Therefore, the FAA has determined that special conditions are needed to address the specific issues particular to the installation and use of an EFVS.
The EFVS is intended to present an enhanced view during the landing approach. This enhanced view would help the pilot see and recognize external visual references, as required by § 91.175(l), and to visually monitor the integrity of the approach, as described in FAA Order 6750.24D, “Instrument Landing System and Ancillary Electronic Component Configuration and Performance Requirements,” dated March 1, 2000.
Based on this approved functionality, users would seek to obtain operational approval to conduct approaches, including approaches to Type I runways, in visibility conditions much lower than those for conventional Category I.
The purpose of these special conditions is to ensure that the EFVS to be installed can perform the following functions:
• Present an enhanced view that aids the pilot during the approach.
• Provide enhanced flight visibility to the pilot that is no less than the visibility prescribed in the standard instrument approach procedure.
• Display an image that the pilot can use to detect and identify the “visual references for the intended runway” required by 14 CFR 91.175(l)(3) to continue the approach with vertical guidance to 100 feet height above the touchdown-zone elevation.
Depending on the atmospheric conditions and the particular visual references that happen to be distinctly visible and detectable in the EFVS image, these functions would support its use by the pilot to visually monitor the integrity of the approach path.
Compliance with these special conditions does not affect the applicability of any of the requirements of the operating regulations (i.e., 14 CFR parts 91, 121, and 135). Furthermore, use of the EFVS does not change the approach minima prescribed in the standard instrument approach procedure being used; published minima still apply.
The FAA certification of this EFVS is limited as follows:
1. The infrared-based EFVS image will not be certified as a means to satisfy the requirements for descent below 100 feet height above touchdown.
2. The EFVS may be used as a supplemental device to enhance the pilot's situational awareness during any phase of flight or operation in which its safe use has been established.
An EFVS image may provide an enhanced image of the scene that may compensate for any reduction in the clear outside view of the visual field framed by the HUD combiner. The pilot must be able to use this combination of information seen in the image and the natural view of the outside scene, as seen through the image, as safely and effectively as the pilot would use a pilot compartment view without an EVS image that is compliant with § 25.773. This is the fundamental objective of the special conditions.
The FAA will also apply additional certification criteria, not as special conditions, for compliance with related regulatory requirements, such as §§ 25.1301 and 25.1309. These additional criteria address certain image characteristics, installation, demonstration, and system safety. Image-characteristics criteria include the following:
• Resolution
• Luminance
• Luminance uniformity
• Low-level luminance
• Contrast variation
• Display quality
• Display dynamics (e.g., jitter, flicker, update rate, and lag)
• Brightness controls
Installation criteria address visibility and access to EFVS controls and integration of EFVS in the cockpit.
The EFVS demonstration criteria address the flight and environmental conditions that need to be covered.
The FAA also intends to apply certification criteria relevant to high-intensity radiated fields (HIRF) and lightning protection.
As discussed above, these special conditions are applicable to the Boeing Model 777F. Should the FedEx Express Corporation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00001SE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Boeing 777F airplanes. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for Boeing Model 777F airplanes modified by the FedEx Express Corporation.
1. Enhanced flight vision system (EFVS) imagery on the head-up display (HUD) must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.
2. To avoid unacceptable interference with the safe and effective use of the pilot compartment view, the EFVS device must meet the following requirements:
a. The EFVS design must minimize unacceptable display characteristics or
b. Automatic control of EFVS display brightness must be sufficiently effective, in dynamically changing background (ambient) lighting conditions, to prevent full or partial blooming of the display that would distract the pilot, impair the pilot's ability to detect and identify visual references, mask flight hazards, or otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (e.g., low visibility instrument approach).
c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the EFVS image on demand without removing the pilot's hands from the primary flight controls (yoke or equivalent) or thrust control.
d. The EFVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, traffic alert and collision avoidance system (TCAS) resolution advisories, or unusual attitude recovery cues.
e. The EFVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (i.e., conformal) to the external scene. In addition, the EFVS image and the HUD symbols, when considered singly or in combination, must not be misleading, cause pilot confusion or increase workload. Airplane attitudes or crosswind conditions may cause certain symbols (e.g., the zero-pitch line or flight path vector) to reach field-of-view limits such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed but with an altered appearance, which makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”).
f. A HUD system used to display EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.
3. The safety and performance of the pilot tasks associated with the use of the pilot compartment view must not be degraded by the display of the EFVS image. Pilot tasks that must not be degraded by the EFVS image include:
a. Detection, accurate identification, and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.
b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.
4. Use of EFVS for instrument approach operations must be in accordance with the provisions of § 91.175(l) and (m) and § 121.651 where applicable. Appropriate limitations must be stated in the operating limitations section of the airplane flight manual to prohibit the use of the EFVS for functions that have not been found to be acceptable.
Coast Guard, DHS.
Final rule.
The Coast Guard is revising the drawbridge opening schedule for the Lake State Railway Bridge at mile 3.10, the Independence Bridge at mile 3.88, the Canadian National Railway Bridge at mile 4.94, the Liberty Street Bridge at mile 4.99, the Veterans Memorial Bridge at mile 5.60, and the Lafayette Street Bridge at mile 6.78, all over the Saginaw River at Bay City, MI. The previous regulation was confusing, outdated, and unnecessarily restrictive for both commercial and recreational vessels. The revised regulation will simplify the regulatory language, increase access through the drawbridges for all vessels, and provide for the reasonable needs of all traffic.
This rule is effective May 14, 2012.
Comments and related materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-1013 and are available online by going to
If you have questions on this rule, call or email Mr. Lee Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone (216) 902-6085, email
On December 8, 2011, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Saginaw River, Bay City, MI, in the
Lake Carriers Association (LCA), an organization representing U.S. shipping companies on the Great Lakes, requested that the existing drawbridge regulation for Saginaw River be reviewed and changed to make the regulation easier to understand and to remove restrictive drawbridge schedules for commercial vessels. The existing regulation was reviewed in its entirety for all drawbridges, vessel types, dates, and hours of operation.
Lake State Railway Bridge at mile 3.10 is a swing bridge that provides 7 feet vertical clearance in the closed position and unlimited clearance in the open position. The Independence Bridge at mile 3.88 is a bascule bridge that provides 22 feet vertical clearance in the closed position and unlimited clearance in the open position. The Canadian National Railway (CN RR) Bridge at mile 4.94 is a swing bridge that provides 8 feet of vertical clearance in the closed position and unlimited clearance in the open position. The Liberty Street Bridge at mile 4.99 is a bascule bridge that provides 25 feet of vertical clearance in the closed position and unlimited
The draws of the Lake State Railway and Canadian Railway Bridges currently open on signal for all vessel traffic that requires a bridge opening, except that from December 16 through March 15 the bridges open on signal if at least 12 hours advance notice is provided.
The draws of the Independence Bridge, Liberty Street, Veterans Memorial, and Lafayette Street drawbridges open on signal from March 16 through December 15, except as follows: The draws need not open for the passage of vessels less than 50 gross tons from 6:30 a.m. to 8:30 a.m. and 3:30 p.m. to 5:30 p.m., except Saturdays, Sundays, and holidays observed in the locality. The draws need not open for the passage of downbound vessels over 50 gross tons from 7:30 a.m. to 8:30 a.m. and 4:30 p.m. to 5:30 p.m., except on Sundays, Federal holidays, and holidays observed in the locality. From 8 a.m. to 8 p.m. on Saturdays, Sundays, and Federal holidays, the Independence Bridge and Veterans Memorial bridges need not open for recreational vessels except from three minutes before to three minutes after the hour and half-hour, and the Liberty Street and Lafayette Street bridges need not open for recreational vessels except from three minutes before to three minutes after the quarter-hour and three-quarter hour. Currently, the draws of these bridges shall open on signal from December 16 through March 15 if at least 12 hours advance notice is provided.
The proposed drawbridge schedules and revised regulations were developed with all known stakeholders, including; Lake Carriers Association, Canadian Shipowners Association, local Coast Guard units, City of Bay City, MI, Michigan Department of Transportation (MDOT), Bay Harbor Marina, Pier 7 Marina, Liberty Harbor Marina, and Bay City Yacht Club.
The Coast Guard received one comment supporting the NPRM as written. No changes to the proposed regulation have been made in this final rule. The revised regulation reflects current conditions and provides for the reasonable needs of all modes of transportation.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule increases access through the drawbridges for all entities compared to the existing regulation and drawbridge schedule. All known marina owners and small entities were consulted during the development of this revised rule. Additionally, all vessels that do not require bridge openings may transit the drawbridges at any time.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under figure 2-1, paragraph (32)(e), of the instruction.
Under figure 2-1, paragraph (32)(e), of the instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard revises 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(a) The draws of the Lake State Railway Bridge, mile 3.10, and the Canadian National Railway Bridge, mile 4.94, both in Bay City, shall open on signal; except that from January 1 through March 31, the draws shall open on signal if at least 12 hours advance notice is provided.
(b) The draws of the Independence Bridge, mile 3.88, Liberty Street Bridge, mile 4.99, Veterans Memorial Bridge, mile 5.60, and Lafayette Street Bridge, mile 6.78, all in Bay City, shall open on signal, except as follows:
(1) From April 15 through November 1, between the hours of 6:30 a.m. and 7 p.m., Monday through Friday, except federal holidays, the draws of the Independence and Veterans Memorial Bridges need open for the passage of recreational vessels only from three minutes before to three minutes after the hour and half-hour, and the Liberty Street and Lafayette Street bridges need open for the passage of recreational vessels only from three minutes before to three minutes after the quarter-hour and three-quarter hour.
(2) From January 1 through March 31, the draws of these bridges shall open on signal if at least 12 hours advance notice is provided.
Coast Guard, DHS.
Temporary Final rule.
The Coast Guard is establishing a safety zone around the Vigor Marine Dry Dock, located in Everett, WA. This action is necessary to prevent maritime traffic from colliding with a sunken dry dock and associated debris, and to ensure the safety of the salvage crews on scene. It will do so by prohibiting vessels from entering or remaining in the safety zone unless authorized by the Captain of the Port or his Designated Representative.
This rule is effective in the CFR on April 12, 2012 through 11:59 p.m. on April 15, 2012. This rule is effective with actual notice for purposes of enforcement at 12 a.m. on April 2, 2012. This rule will remain in effect through 11:59 p.m. on April 15, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2012-0282 and are available online by going to
If you have questions on this temporary rule, call or email ENS Nathaniel P. Clinger, Waterways Management Division, Coast Guard Sector Puget Sound; Coast Guard; telephone 206-217-6045; email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing a NPRM would be contrary to public interest since immediate action is necessary to protect vessels, persons, and salvage crews in Everett, WA, from hazards created by a sunken dry dock requiring emergency salvage operations. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On March 18, 2012 at approximately 12:46 p.m. the floating dry dock in which the 136 foot TUG INVADER was laying on blocks was found to have capsized and partially sank. As a result the Coast Guard established a 100 yard safety zone around the Vigor Marine Dry Dock in Everett, WA. On March 22, 2012 it was determined that a hard containment boom must be tied to the existing long log boom in place, which is outside of the original established safety zone. Due to these operational requirements this rule establishes a 200 yard safety zone surrounding the dry dock. As salvage operations continue to recover the floating dry dock, salvage equipment, which may include cranes and vessels utilizing dive teams that will require this zone to ensure safety. Enforcement of this zone will commence at 12 a.m. on April 2, 2012. The safety zone created by this rule is necessary to help ensure the safety of maritime public and the personnel involved in salvage operations. It prevents navigation in areas that may contain sunken obstructions, and debris.
The Coast Guard is establishing a safety zone encompassing all waters within 200 yards of Vigor Marine Dry Dock in Everett, WA. Vessels wishing to enter the zone must request permission for entry by contacting the Joint Harbor Operation Center at (206) 217-6001 or Vessel Traffic Service Puget Sound on VHF-FM CH 14. Once permission for entry is granted vessels must proceed at a minimum speed for safe navigation.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866. This rule is not a significant regulatory action due to being limited in size and duration.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit the affected waterway during the period mentioned. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason. The zone established in this rule is limited in size and short in duration.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1
(a)
(b)
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Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone in and around the Squalicum Harbor Marina, located in Bellingham, WA. This action is necessary to ensure the safety of the maritime public and the on-scene law enforcement, and salvage vessels by preventing contact with associated debris, and sunken vessels, and will do so by prohibiting vessels from entering or remaining in the safety zone unless authorized by the Captain of the Port or his Designated Representative.
This rule is effective April 12, 2012 through 11:59 p.m. April 13, 2012. The safety zone has been enforced with actual notice since 12 a.m. on April 5, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-1005 and are available online by going to
If you have questions on this temporary rule, call or email Ensign Nathaniel P. Clinger, Waterways Management Division, Coast Guard Sector Puget Sound; Coast Guard; telephone 206-217-6323, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing a NPRM would be contrary to public interest since immediate action is necessary to protect vessels, persons and law enforcement vessels in
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
On March 30 at approximately 5:32 a.m. the Coast Guard received a report that a house boat exploded, in the Squalicum Marina in the Bellingham Harbor, which ignited a boat house and sunk multiple vessels. On April 4, 2012 the Coast Guard was notified that the salvage operations to recover approximately 10 sunken vessels will require a safety zone that exceeds the timeline of the initial zone. Due to ongoing salvage operations, which may include cranes and vessels utilizing dive teams, the Coast Guard will establish a safety zone of all waters of the Squalicum Harbor Marina and all waters within 200 yards of the entrance to the marina, located in Bellingham, WA. Enforcement of this zone will commence at 12 a.m. on April 5, 2012. The safety zone created by this rule is necessary to help ensure the safety of the maritime public and the personnel involved in the salvage operations. It prevents navigation in areas that may contain debris and hazardous materials produced from the boat house and damaged vessels.
The Coast Guard is establishing a safety zone which encompasses all waters of the Squalicum Harbor Marina and all waters within 200 yards of the entrance, in Bellingham, WA. Vessels wishing to enter the zone must request permission for entry by contacting the on-scene patrol craft on VHF CH 13 or Joint Harbor Operation Center at (206) 217-6001. Once permission for entry is granted vessels must proceed at a minimum speed necessary for safe navigation.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This rule is not a significant regulatory action due to being limited in size and duration.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators vessels intending to transit the affected waterway during the period mentioned. This safety zone will not have a significant economic impact on a substantial number of small entities because the zone established in this rule is limited in size and short in duration.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1
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(b)
(c)
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) Region 5 is publishing a direct final Notice of Deletion of the A & F Material Reclaiming, Inc. Superfund Site (Site), located in Greenup, Illinois from the National Priorities List (NPL). The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final deletion is being published by EPA with the concurrence of the State of Illinois, through the Illinois Environmental Protection Agency (IEPA), because EPA has determined that all appropriate response actions under CERCLA have been completed. However, this deletion does not preclude future actions under Superfund.
This direct final deletion is effective June 11, 2012 unless EPA receives adverse comments by May 14, 2012. If adverse comments are received, EPA will publish a timely withdrawal of the direct final deletion in the
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1983-0002, by one of the following methods:
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• U.S. Environmental Protection Agency—Region 5, 77 West Jackson Boulevard, Chicago, IL 60604. Phone: (312) 353-1063. Hours: Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.
• Greenup City Clerk's Office, Greenup Municipal Building, 115 Cumberland Avenue, Greenup, IL 62428. Phone: (217) 923-3401. Hours: Monday through Friday, 7:30 a.m. to 4:30 p.m.
Gladys Beard, NPL Deletion Process Manager, U.S. Environmental Protection Agency (SR-6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 353-2315, or
EPA Region 5 is publishing this direct final Notice of Deletion of the A & F Material Reclaiming, Inc. Superfund Site from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.
Because EPA considers this action to be noncontroversial and routine, this action will be effective June 11, 2012 unless EPA receives adverse comments by May 14, 2012. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the A & F Material Reclaiming, Inc. Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
1. Responsible parties or other persons have implemented all appropriate response actions required;
2. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
3. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
The following procedures apply to deletion of the Site:
1. EPA consulted with the State of Illinois prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the
2. EPA has provided the State with 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the State, through IEPA, has concurred on the deletion of the Site from the NPL.
3. Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, the Times Courier News, located in Charleston, Illinois. The newspaper notice announces the 30-day public comment period concerning the Notice
4. EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
5. If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Site from the NPL:
The A & F Material Reclaiming, Inc. Superfund Site (CERCLIS ID# ILD980397079) is located on approximately four acres of land on the western border of the Village of Greenup, in east-central Illinois. The Site, which lies on the west side of the village, is bounded by open farmland and woodland, the local wastewater treatment plant, and private residences; fairgrounds lie to the southwest. The Site has a slope toward the Embarras River, which lies about 600 feet to the north. Drainage from the Site reaches the river by way of a ditch along a former railroad right-of-way west of the Site and east of the municipal wastewater treatment plant. The local wastewater treatment plant has several lagoons and the plant discharges the treated water into the ditch along the railroad right-of-way.
Three distinct aquifers exit at the Site: Alluvium till, present at or near ground surface; sand and gravel, present at shallow depths below ground surface, and bedrock. The shallow aquifer is a poor water producer and is not used as a source of water supply. However, it does furnish recharge to the underlying sand and gravel. The alluvium forms an essentially level surface and contains groundwater at shallow depths in the range of 8 to 12 feet below grade. According to the measured water levels, groundwater flow is directed downslope to the west and north of the Site. No private wells have been found north or west of the Site. The sand and gravel outwash aquifer is a regionally significant unit which is present beneath the entire Site and receives recharge from the overlying alluvium. In the outwash sand and gravel aquifer, groundwater flow is generally downslope from the highlands east of the Site, and flow in the level section of the study area is directed northward toward the Embarras River. Discharge is also directed toward the Embarras River. The bedrock aquifer is not significant in the area of the Site. Water contained in the fractured section of the Pennsylvanian bedrock is present under strong artesian conditions. Recharge of the bedrock aquifer probably occurs from overlying units located elsewhere where water levels are higher than those observed in the study area. Based upon water level data from the remedial investigation, neither of the unconsolidated aquifers encountered on-site discharges to the drainage ditch. The lagoons constructed on site during operation of the facility were excavated into the unsaturated portion of the alluvial aquifer.
The historic use of the Site has been for industrial purposes. However, there have not been any industrial activities at the Site since the facility closed in 1980. The A & F Material Reclaiming facility began operations in March 1977 as a recycling plant. The facility processed waste materials such as oil, sludge, caustics, and sulfuric acid into fuel oil and fire retardant chemicals. There were numerous violations of the operating permits issued by IEPA. Within a year of operating, four storage lagoons overflowed, contaminating the surrounding soil and water drainage pathway to the Embarras River. In addition, some of the steel storage tanks failed on several occasions, releasing their contents on the Site. These tanks held mixtures of waste oils, sludges, spent caustics, spent acids, contaminated water, and other waster products. Present land use for the surrounding area is residential, commercial, and recreational (fairgrounds are located southwest of the Site). Currently no groundwater underlying the Site is used as a drinking water source.
From December 1980 through December 1982 there were several removal actions at the Site in which contaminated soils, sediments, tank, and buildings were removed and disposed off site. These actions included lowering the level of waste in the lagoons, diking, trenching, and removing drums and wastes off site. In addition, a temporary cap was placed over a portion of the consolidated sludge on site.
In December 1982 the Site was included on the Proposed NPL (47 FR 58476). The Site was finalized on the NPL on September 8, 1983 (48 FR 40674). In November 1983 an Initial Remedial Measure was implemented to address remaining site contaminants in tanks and drums. The remaining on-site waste included approximately 153,000 gallons of contaminated liquids in tanks, 16,000 gallons of contaminated oil in tanks, and 20 drums with unknown contents. All tank liquids, oils, and drums were disposed off site at an approved facility through the Initial Remedial Measure.
On September 12, 1984, a Partial Consent Decree was entered into by four of the potentially responsible parties, which outlined a remedial action plan that included a phased approach for cleaning up the Site. The first phase included the remedial investigation and the feasibility study; the second phase was an immediate removal action to address the threatened release of contaminates from the two lagoons; the third phase involved removal and disposal of contaminated soils and sediments, removal and disposal of the building and equipment, final site grading, air monitoring, and site security; and the final phase of the remedial action plan involved closure and groundwater monitoring requirements.
The remedial investigation report did not include a formal baseline risk assessment. Since the lagoon sludge, wastewater, oil, and tank waste were removed under the Interim Remedial Measure, they posed no environmental impacts or adverse health effects to the neighboring community. The primary concerns associated with the Site were from ingestion or direct contact exposures to the soil, sediment, groundwater, and surface water. Soils in the area of the tank farm were contaminated and posed an environmental threat. Several sediment samples taken from the drainage ditch showed low levels of polynuclear aromatic hydrocarbons, but sediments from the river did not have any substantial contamination. Neither the
Data from groundwater monitoring wells showed elevated levels of sulfate, total dissolved solids (TDS), and oil and grease. Additionally, several metals were detected at levels higher than background and in some cases higher than the IEPA standard for groundwater. Because of the dilution effect between the groundwater and surface water, it was expected that the contaminated groundwater would not cause contamination in the river. Also, the planned removal of contaminated materials from the Site would remove the primary source of contamination to the groundwater. The remedial investigation concluded there was a high flow rate through the sand and gravel aquifer, which would allow for rapid flushing of any residual contaminants.
1985 and 1986 Enforcement Decision Document (EDD) Findings:
EPA issued an EDD for Operable Unit 1 (OU1) on June 14, 1985 that addressed the soil, sediments, building, and equipment. The goal of this remedy was to remove soils found with contamination above action levels for site contaminants of concern (COCs) and to remove on-site buildings in order to protect public health, welfare, and the environment. The remedy for OU1 included:
• All soils, surface and subsurface, contaminated above the recommended action levels were to be removed and disposed at an off-site facility;
• Facility equipment and building structures were to be cleaned, dismantled, removed, and disposed at an off-site facility;
• Site grading to eliminate ponding;
• Maintenance of a vegetative cover to prevent erosion; and
• Groundwater monitoring to confirm that no further soil removal was required.
On August 14, 1986 EPA issued an EDD for Operable Unit 2 (OU2) that addressed groundwater. The goal of this remedy was to restore groundwater to below Maximum Concentration Levels (MCLs) in order to protect public health, welfare, and the environment. The remedy for OU2 included:
• Establishing a groundwater monitoring program to test whether all residual groundwater contamination remaining after the cleanup would steadily decrease to safe levels by natural dilution and purging to the Embarras River without causing violation of the water quality standards of the river;
• Establishing adequate institutional controls so that drinking water wells are not placed in the contaminated groundwater areas during the period of natural dilution and purging; and
• Establishing procedures for regular review of monitoring data until safe levels are reached or data contradicting the feasibility study conclusions demonstrates the need to reevaluate the remedy.
2010 ESD Findings:
On May 24, 2010 an Explanation of Significant Differences (ESD) was signed by EPA. The purpose of the ESD was to eliminate iron, manganese, sulfate, and TDS as site contaminants of concern from the groundwater cleanup remedy selected in the 1986 EDD for OU2. These contaminants were removed because the action levels for these four parameters are secondary MCLs, which are non-enforceable guidelines regulating contaminants that may cause cosmetic or aesthetic effects in drinking water. Furthermore, review of groundwater data by EPA concluded that these constituents are naturally occurring, do not pose a risk to human health and the environment, and are stable or decreasing in concentration.
With the implementation of the OU1 remedy, an additional 1,600 tons of soil and sludge, 1,300 cubic yards of polychlorinated biphenyl (PCB)-contaminated soil, and a process building with contaminated equipment were removed from the Site. The soils remaining on site were sampled and analyzed prior to placing clean fill over the area. All compounds analyzed for, including PCBs, were at non-detectable limits. Only phenols and benzoic acid were detected in two pocket areas, but the detected levels were below action levels. Soil and sediment action levels in the 1985 EDD for OU1 remain protective. Any remaining residual soil or sediment contamination are at levels comparable to concentrations found naturally in the environment and do not present any environmental or public health risks. The entire area was then filled with clean soil, graded, and vegetated.
The groundwater monitoring program was agreed to by the Consenting Defendants in 1988 and documented in the August 1988 Remedial Action Plan as required by the August 14, 1986 EDD for OU2. EPA approved the design, including plans and specifications for well placement, project health and safety plan, and quality assurance project plan in May 1990. Well construction was completed, and a final inspection was conducted on July 9, 1990.
EPA signed the Preliminary Close-Out Report, documenting that all construction activities for the final operable unit at the Site had been completed on September 24, 1992. In 2000, as part of the institutional controls requirements for the Site, Cumberland County and the Village of Greenup adopted ordinances restricting groundwater use on approximately 68 acres that include the A & F Material Reclaiming Site and some surrounding areas. The ordinances were intended to prevent contact and use of the contaminated groundwater at and near the Site until groundwater quality reaches safe levels, in accordance with the 1986 EDD for OU2.
With the signing of the May 24, 2010 ESD, all groundwater cleanup levels have been attained and groundwater monitoring is no longer required. The 1986 EDD for OU2 specified that “institutional controls will be required until groundwater quality returns to background levels or below the State and Federal criteria shown in Table 2” (Table 1). Because groundwater cleanup levels have been attained, EPA no longer requires that institutional controls be maintained at the Site.
Under the August 1988 Remedial Action Plan required by the August 14, 1986 EDD for OU2, several additional monitoring wells were installed and a few existing wells were abandoned. Twenty parameters listed in the 1986 EDD for OU2 (Table 1) were to be periodically monitored until their concentrations dropped below the action levels specified in the EDD. The action levels were based upon MCLs and secondary MCLs of the Safe Drinking Water Act. Elimination of a parameter in a given well could occur when that parameter had not been detected above the action limits per the procedures in the August 1988 Remedial Action Plan.
Between 1990 and 1999 sixteen of the twenty monitoring parameters were eliminated as their concentrations had dropped below their respective action levels. Following the March 1999 sampling event, only four of the original twenty parameters were monitored: Iron, manganese, sulfate, and TDS. These parameters were eliminated as site contaminants of concern in the 2010 ESD. With the elimination of the four remaining site contaminants of concern, the action levels identified in the 1986 EDD for OU2 for these contaminants are no longer applicable or relevant and appropriate. Therefore, all groundwater cleanup levels have been attained and groundwater monitoring will no longer be required. Cumberland County and the Village of Greenup were notified by EPA in May 2010 that no further groundwater monitoring will be required. As noted previously, confirmatory soil sampling has indicated that all compounds sampled and analyzed for yielded either non-detectable levels or levels that are still below action levels for soil. All monitoring conducted for surface water and sediments in the Embarras River were below sediment action levels and surface water quality criteria for all groundwater parameters listed in the EDD, as modified by the ESD. The COCs that were listed in the 1985 EDD included the following: Trichloroethylene, benzene, sulfates, TDS, oil and grease, copper, silver, zinc, lead, chromium (+6), barium, thallium, phenolics, total organic halogens, nitrates, chloride, conductivity, nickel, aluminum, iron, manganese, cadmium, and arsenic.
Operation and maintenance activities are no longer required at this Site.
Policy five-year reviews were completed for the A & F Material Reclaiming Site on September 27, 2000; September 29, 2005; and June 30, 2010. The June 30, 2010 five-year review concluded that the site remedy was protective of human health and the environment. No issues or recommendations were identified as part of this review. This five-year review also concluded that the cleanup goals for soil and groundwater have been achieved and that hazardous wastes no longer remain on site that would prohibit unlimited use or unrestricted exposure. Therefore, five-year reviews are no longer required at the A & F Material Reclaiming Superfund Site.
Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617. Documents in the deletion docket, which EPA relied on for recommendation of the deletion of this Site from the NPL, are available to the public in the information repositories and at
The NCP (40 CFR 300.425(e)) states that a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Illinois, has determined that the responsible parties have implemented all response actions required, and no further response action by responsible parties is appropriate.
EPA, with concurrence from the State of Illinois through IEPA, has determined that all appropriate response actions under CERCLA have been completed. EPA received concurrence from the State of Illinois on January 10, 2012. Therefore, EPA is deleting the Site from the NPL.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective June 11, 2012 unless EPA receives adverse comments by May 14, 2012. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, and Water supply.
For the reasons set out in this document, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Bureau of Consumer Financial Protection.
Proposed rule; request for public comment.
The Bureau of Consumer Financial Protection (Bureau) is proposing to amend Regulation Z, which implements the Truth In Lending Act, and the official interpretation to the regulation, which interprets the requirements of Regulation Z. Regulation Z generally limits the total amount of fees that a credit card issuer may require a consumer to pay with respect to an account, limiting fees to 25 percent of the credit limit in effect when the account is opened. Regulation Z currently states that this limitation applies prior to account opening and during the first year after account opening. The proposal requests comment on whether to amend Regulation Z to apply the limitation only during the first year after account opening.
Comments must be received on or before June 11, 2012.
You may submit comments, identified by Docket No. CFPB-2012-0015 or Regulatory Identification Number (RIN) 3170-AA21, by any of the following methods:
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All submissions must include the agency name and docket number or RIN for this rulemaking. In general, all comments received will be posted without change to
All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Gregory Evans, Counsel, or Benjamin K. Olson, Managing Counsel, Division of Research, Markets, and Regulations, Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552, at (202) 435-7000.
The Credit Card Accountability Responsibility and Disclosure Act of 2009 (Credit Card Act) was signed into law on May 22, 2009.
The Credit Card Act added TILA Section 127(n)(1), which states that “[i]f the terms of a credit card account under an open end consumer credit plan require the payment of any fees (other than any late fee, over-the-limit fee, or fee for a payment returned for insufficient funds) by the consumer in the first year during which the account is opened in an aggregate amount in excess of 25 percent of the total amount of credit authorized under the account when the account is opened,” then “no payment of any fees (other than any late fee, over-the-limit fee, or fee for a payment returned for insufficient funds) may be made from the credit made available under the terms of the account.”
On January 12, 2010, the Federal Reserve Board of Governors (Board) issued a final rule implementing new TILA Section 127(n) in 12 CFR 226.52(a).
On April 8, 2011, the Board issued a final rule expanding § 226.52(a) to apply to fees the consumer is required to pay with respect to an account prior to account opening.
On July 20, 2011, a credit card issuer filed a lawsuit in the United States District Court for the District of South Dakota, alleging that the Board exceeded its authority by expanding § 226.52(a) to apply to fees the consumer is required to pay prior to account opening.
On December 22, 2011, the Bureau issued an interim final rule to reflect its assumption of rulemaking authority over Regulation Z.
The Bureau is issuing this proposal pursuant to its authority under TILA and the Dodd-Frank Act. Effective July 21, 2011, Section 1061 of the Dodd-Frank Act transferred to the Bureau the “consumer financial protection functions” previously vested in certain other Federal agencies. The term “consumer financial protection functions” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.”
TILA, as amended by the Dodd-Frank Act, authorizes the Bureau to “prescribe regulations to carry out the purposes of [TILA].”
The Bureau is proposing to amend 12 CFR 1026.52(a) to resolve the uncertainty caused by the litigation discussed above. Specifically, the Bureau is proposing to amend § 1026.52(a) to provide that the limitation on credit card fees applies only during the first year after account opening. The Bureau is also proposing to make corresponding amendments to the Official Interpretations of § 1026.52(a).
In developing the proposed rule, the Bureau has conducted an analysis of potential benefits, costs, and impacts,
The proposal provides that the limitation on credit card account fees in § 1026.52(a) applies only during the first year after account opening. If the proposal is adopted, fees that a consumer is required to pay prior to account opening will not be subject to the limitation in § 1026.52(a).
The Bureau believes that the proposal, if adopted, may impose potential costs on consumers by permitting covered persons to collect fees that would be disallowed absent the proposal. Covered persons should benefit from clarification of the scope of § 1026.52(a) to resolve any uncertainty created by the litigation discussed above. The proposed rule would also permit covered persons to collect fees that would be prohibited absent the proposed rule. The Bureau does not expect the proposal to impose costs on covered persons. All methods of compliance under current law will remain available to covered persons if the proposal is adopted. Thus, a covered person who is in compliance with current law need not take any additional action if the proposal is adopted.
Finally, the proposed rule would have no unique impact on insured depository institutions or insured credit unions with $10 billion or less in assets as described in section 1026 of the Dodd-Frank Act, nor would the proposed rule have a unique impact on rural consumers.
The Bureau requests comments on the potential benefits, costs, and impacts of the proposal.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations.
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.
An IRFA is not required for the proposal because the proposal, if adopted, would not have a significant economic impact on any small entities. The Bureau does not expect the proposal to impose costs on covered persons. All methods of compliance under current law will remain available to small entities if the proposal is adopted. Thus, a small entity that is in compliance with current law need not take any additional action if the proposal is adopted. Instead, the overall
Accordingly, the undersigned certifies that this proposal, if adopted, would not have a significant economic impact on a substantial number of small entities.
The collection of information related to this notice of proposed rulemaking has been previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and assigned OMB Control Number 3170-0015. Under the Paperwork Reduction Act, the Bureau may not conduct or sponsor, and a person is not required to respond to, an information collection unless the information collection displays a currently valid control number assigned by OMB. As discussed below, the Bureau does not believe that this proposed rule imposes any new collection of information or any increase to the previously approved estimated burden associated with the information collection in Regulation Z.
The collection of information, if any, in Regulation Z, 12 CFR part 1026. The information collection in Regulation Z is required to provide benefits for consumers and is mandatory.
If this proposal to Regulation Z is adopted, card issuers will not be required to comply with § 1026.52(a) with respect to fees the consumer is required to pay prior to account opening. The Bureau believes that any burden associated with updating compliance under the proposed provisions is already accounted for in the previously approved burden estimates associated with the collection in Regulation Z under the Board's January 2010 Final Rule estimates. That rule imposed a similar limitation on fees.
Although the Bureau does not believe that the proposed rule imposes any new collection of information or any increase to the previously approved estimated burden associated with the collection in Regulation Z, the Bureau solicits comment on the proposed modification to § 1026.52(a) or any other aspect of the proposal for purposes of the PRA. Comments on the collection of information requirements should be sent to the Office of Management and Budget, Attention: Desk Officer for the Consumer Financial Protection Bureau, Office of Information and Regulatory Affairs, Washington, DC 20503, or by the Internet to
Certain conventions have been used to highlight the proposed changes to the text of the regulation and official interpretation. New language is shown inside ▸bold-faced arrows◂, while language that would be deleted is set off with
Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.
For the reasons set forth above, the Bureau proposes to amend Part 1026 of Chapter X in Title 12 of the Code of Federal Regulations as follows:
1. The authority citation for Part 1026 continues to read as follows:
12 U.S.C. 5512, 5581; 15 U.S.C. 1601 et seq.
2. In § 1026.52, revise paragraph (a) to read as follows:
(a)
3. In Paragraph 52(a), revise to read as follows:
1.
i. Assume that, under the terms of a credit card account, a consumer is required to pay $120 in fees for the issuance or availability of credit at account opening. The consumer is also required to pay a cash advance fee that is equal to five percent of the cash advance and a late payment fee of $15 if the required minimum periodic payment is not received by the payment due date (which is the twenty-fifth of the month). At account opening on January 1 of year one, the credit limit for the account is $500. Section 1026.52(a)(1) permits the card issuer to charge to the account the $120 in fees for the issuance or availability of credit at account opening. On February 1 of year one, the consumer uses the account for a $100 cash advance. Section 1026.52(a)(1) permits the card issuer to charge a $5 cash-advance fee to the account. On March 26 of year one, the card issuer has not received the consumer's required minimum periodic payment. Section 1026.52(a)(2) permits the card issuer to charge a $15 late payment fee to the account. On July 15 of year one, the consumer uses the account for a $50 cash advance. Section 1026.52(a)(1) does not permit the card issuer to charge a $2.50 cash advance fee to the account. Furthermore, § 1026.52(a)(1) prohibits the card issuer from collecting the $2.50 cash advance fee from the consumer by other means.
ii. Assume that, under the terms of a credit card account, a consumer is required to pay $125 in fees for the issuance or availability of credit during the first year after account opening. At account opening on January 1 of year one, the credit limit for the account is $500. Section 1026.52(a)(1) permits the card issuer to charge the $125 in fees to the account. However, § 1026.52(a)(1) prohibits the card issuer from requiring the consumer to make payments to the card issuer for additional non-exempt fees with respect to the account
3.
i.
ii.
1.
i. Fees that the consumer is required to pay for the issuance or availability of credit described in § 1026.60(b)(2), including any fee based on account activity or inactivity and any fee that a consumer is required to pay in order to receive a particular credit limit;
ii. Fees for insurance described in § 1026.4(b)(7) or debt cancellation or debt suspension coverage described in § 1026.4(b)(10) written in connection with a credit transaction, if the insurance or debt cancellation or debt suspension coverage is required by the terms of the account;
iii. Fees that the consumer is required to pay in order to engage in transactions using the account (such as cash advance fees, balance transfer fees, foreign transaction fees, and fees for using the account for purchases);
iv. Fees that the consumer is required to pay for violating the terms of the account (except to the extent specifically excluded by § 1026.52(a)(2)(i));
v. Fixed finance charges; and
vi. Minimum charges imposed if a charge would otherwise have been determined by applying a periodic interest rate to a balance except for the fact that such charge is smaller than the minimum.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of intent to revise boundaries; intent to prepare environmental impact statement; scoping meetings.
In accordance with section 304(e) of the National Marine Sanctuaries Act, as amended, (NMSA) (16 U.S.C. 1431
Comments must be received by May 25, 2012. Dates for scoping meetings are:
1. April 17, 2012.
2. April 18, 2012.
3. April 19, 2012.
Comments may be submitted by any one of the following methods:
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All comments received are a part of the public record. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NOAA will accept anonymous comments (enter N/A in the required fields to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Ellen Brody, Great Lakes Regional Coordinator, Telephone: (734) 741-2270.
In 2000, NOAA designated the 448-square-mile Thunder Bay National Marine Sanctuary (TBNMS or sanctuary), which is jointly managed by NOAA and the State of Michigan (65 FR 39041). The sanctuary's mission is to preserve nationally significant shipwrecks and other maritime heritage resources through resource protection, education, and research. Well-preserved by Lake Huron's cold, fresh water, these shipwrecks span a century and a half of Great Lakes maritime history and include virtually all types of vessels used on the Great Lakes. Within the existing sanctuary boundary are approximately one hundred shipwrecks.
NOAA has received a number of comments expressing interest in expanding the sanctuary's boundary to include the waters adjacent to Alcona and Presque Isle Counties since the scoping process in 2006 for the sanctuary's management plan review. Several local government and non-governmental organizations passed resolutions or submitted written letters of support for boundary expansion (see
The sanctuary's final management plan (2009) included the following strategy: “Evaluate and assess a proposed expansion of the sanctuary to a 3,662-square-mile area from Alcona County to Presque Isle County, east to the international border with Canada to protect, manage, and interpret additional shipwrecks and other potential maritime heritage resources.”
In accordance with Section 304(e) of the National Marine Sanctuaries Act, as amended (NMSA), 16 U.S.C. 1431
The review process is composed of four primary stages:
1. Information collection and characterization, including public scoping meetings;
2. Preparation and release of a draft environmental impact statement (DEIS) as required by Section 304(a) of the NMSA that identifies boundary expansion alternatives, as well as a notice of proposed rulemaking (NPRM) to amend the sanctuary regulations to reflect any new boundary if proposed.
3. Public review and comment on the DEIS and NPRM; and
4. Preparation and release of a final environmental impact statement, including a response to public comments, with a final rule if appropriate.
At this time, NOAA is opening a public comment period to:
1. Gather information and public comments from individuals, organizations, and government agencies on whether TBNMS should expand its boundary, suggestions for the extent of an expanded boundary, and the potential effects of a boundary expansion;
2. Help determine the scope of issues to be addressed in the preparation of an environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA) (43 U.S.C. 4321
3. Conduct a series of public scoping meetings to collect public comment. The public scoping meeting schedule is presented below.
This notice confirms that NOAA will fulfill its responsibility under section 106 of the National Historic Preservation Act (NHPA, 16 U.S.C. 470) through the ongoing NEPA process, pursuant to 36 CFR 800.8(a) including the use of NEPA documents and public and stakeholder meetings to meet the section 106 requirements. The NHPA specifically applies to any agency undertaking that may affect historic properties. Pursuant to 36 CFR 800.16(1)(1), historic properties includes: “Any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. The term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.”
In fulfilling its responsibility under the NHPA and NEPA, NOAA intends to identify consulting parties; identify historic properties and assess the effects of the undertaking on such properties; initiate formal consultation with the State Historic Preservation Officer, the Advisory Council of Historic Preservation, and other consulting parties; involve the public in accordance with NOAA's NEPA procedures, and develop in consultation with identified consulting parties alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects on historic properties and describe them in any environmental assessment or draft environmental impact statement.
16 U.S.C. 1431
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Proposed rule.
Multifamily Accelerated Processing (MAP) is a processing system introduced in 2000 as a pilot program to facilitate the accelerated processing of loan applications for FHA multifamily mortgage insurance, which generally involve the refinance, purchase, new construction, or rehabilitation of multifamily properties. These transactions are costly, complicated, and time-consuming to process. Prior to MAP, HUD field offices were encouraged to develop and test individual fast-track processing systems for use by qualified FHA-approved lenders that were experienced in processing loan applications for multifamily mortgages. The intent was to considerably reduce the processing time of applications. These test procedures included providing qualified lenders with the option of preparing FHA forms and undertaking preliminary underwriting for certain types of loan applications. Fast-track processing procedures developed by individual HUD offices that facilitated processing applications without sacrificing quality or increasing risk were consolidated into a national test of fast-track style processing of multifamily mortgage insurance applications under the name “MAP.” MAP has been administered to date through direct instructions to FHA-approved lenders under a MAP Guide. Given its experience to date with MAP, HUD believes the MAP accelerated processing procedures have been successful. To ensure the continued quality and efficiency of MAP procedures, HUD is codifying in regulations key provisions of MAP and introducing new provisions to strengthen MAP, to assure the integrity and competency of FHA-approved lenders as directed by the Helping Families Save Their Homes Act of 2009.
Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
Terry W. Clark, Office of Multifamily Development, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 6134, Washington, DC 20410; telephone number 202-402-2663 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
The purpose of MAP is to have in place an accelerated system for processing FHA multifamily mortgage insurance applications that is consistent at each HUD multifamily processing office, and that significantly reduces the amount of time that HUD staff spends reviewing those applications. Under MAP, the lender is responsible for preparation of most of the application exhibits, such as the appraisal, and for making a recommendation to HUD based upon the lender's processing and underwriting. This results in a considerable time savings for the lender. For example, under MAP, FHA-approved lenders are provided an earlier review of the application for insurance on new construction and substantial rehabilitation. Therefore, if the application is rejected at a pre-application stage, the lender and borrower do not spend the time and money required to prepare the more extensive exhibits and analysis for the application for an FHA firm commitment. While considerable responsibility for preparation of documents and initial review is placed with the lender, FHA still reviews a lender's exhibits and makes the final underwriting decision.
MAP is not automatically available to all FHA-approved lenders. To use MAP, an FHA-approved lender must apply for approval and be approved as a MAP lender by HUD's Office of Multifamily Housing Development, Lender Qualification and Monitoring Division (LQMD). The appraisers and MAP-approved underwriters of the FHA-approved lender seeking MAP-lender designation must also attend a MAP training session. Lenders that are approved as MAP lenders are determined by HUD to be skilled in underwriting multifamily housing loans and in the preparation of applications for FHA multifamily mortgage insurance. Approval is on a nationwide basis; consequently, the MAP lender may submit applications using MAP regardless of where the property is located or which Multifamily Hub or Program Center will be processing the loan. As a condition of the opportunity to use MAP, a MAP lender's MAP loans are subject to post-endorsement review by LQMD. MAP-lender approval will be for a defined period, and may be renewed, denied renewal, or terminated by FHA as provided in this proposed rule. For example, if the MAP lender fails to meet HUD standards for underwriting loans, its MAP designation also may be terminated.
Under the current MAP system, MAP may be used for the following FHA-insured multifamily programs: Section 220 (apartments in urban renewal areas), Sections 221(d)(3) and 221(d)(4) (apartments), Section 223(a)(7) (refinance of existing insured properties), Section 223(f) (acquisition or refinancing of existing apartments), and Section 231 (housing for the elderly) new construction or substantial rehabilitation. MAP may be used for such other FHA-insured multifamily programs as may be announced by FHA.
From the outset, through MAP, FHA has strived to strike a careful balance between expedited processing and ensuring an acceptable level of risk for HUD's multifamily mortgage insurance programs. Based on HUD's experience to date with MAP, this proposed rule strives not only to maintain that balance but to enhance the quality, competency, and integrity of FHA-approved lenders that are approved as MAP lenders and to manage risk to a level that is acceptable to FHA.
The MAP program has changed significantly in recent years. Since its commencement in 2000, there are now more than 100 FHA-approved MAP lenders. Multifamily loan volume has increased seven-fold, while the number of HUD multifamily housing staff has declined. Transactions are larger and more complex than in the past, and mixed-use projects with commercial components are more common. Most projects have market rents and fewer than in the past are supported by rental assistance. The insured portfolio is growing quickly, but with some concentrations in markets that have experienced soft or deteriorating conditions, and with repeat borrowers in some markets. MAP is increasingly used for affordable housing construction and preservation projects with tax credits and other subsidies, and these transactions require special expertise to process.
Part of the impetus to review the MAP system, particularly the qualifications of an FHA-approved lender to engage in MAP, and to codify lender qualifications and the core requirements of MAP, is the Helping Families Save Their Homes Act of 2009 (HFSH Act). The HFSH Act (Division A of Pub. L. 111-22, approved May 20, 2009), among other things, directs FHA to strengthen the existing FHA lender approval process, including by ensuring that only lenders of integrity are approved by FHA as approved mortgagees.
FHA responded to this statutory direction by taking several steps. Shortly following enactment of the HFSH Act, FHA issued Mortgagee Letter 2009-31, entitled “Strengthening Counterparty Risk Management,” which advised FHA-lenders of the additional ineligibility criteria established by the HFSH Act, and the immediate applicability of such criteria. FHA also issued Mortgagee Letter 2009-41, which addressed Appraisal Performance Standards and Sanctions, and that reminded FHA-approved lenders of their responsibility, along with the appraisers, for the quality and accuracy of appraisals. By final rule issued on April 20, 2010 (75 FR 20718), FHA increased the net worth requirements of FHA-approved lenders, both single family and multifamily lenders. These increases were the first since 1993, and were adopted to ensure that FHA-approved lenders are sufficiently capitalized for the financial transactions occurring, and the concomitant risks present, in today's economy. On May 2, 2011, at 76 FR 24507, FHA announced the update of 36 multifamily rental project loan-closing documents, the majority of which had not been updated in more than two decades. The updated closing documents reflected the greater flexibility provided to lenders to address problems that arise in management of the property, but also greater responsibility to undertake increased due diligence to assure sound underwriting in insured multifamily projects.
All these steps that have been taken are directed to raising the level of competency and integrity of participating lenders, and ensuring the continued viability and availability of FHA mortgage insurance programs. This proposed rule, which addresses the MAP system, is another such step to strengthen FHA, its programs, and participants, and is consistent with
This rule proposes to establish codified regulations for lender and underwriter eligibility and tier qualification criteria for MAP participation, and for FHA's process for approving MAP lenders and underwriters. Currently, HUD's MAP regulations, codified in 24 CFR part 200, subpart Y, address only the enforcement actions that FHA may take against a MAP lender. As the following discussion will highlight, enforcement actions remain a key part of the regulations, but HUD proposes, through this rule, to add new provisions to 24 CFR part 200, subpart Y, to provide for a tiered approval system, the periodic expiration of approval, and lender application for reapproval under the MAP system.
New regulatory section, § 200.1401, entitled “Purpose of MAP and this Subpart,” reflects the broader scope of the MAP regulations as proposed to be revised to this rule, and new section § 200.1403, the definition section, defines terms used in the proposed revised regulations. New regulatory section, § 200.1407, sets out the responsibilities of the MAP lender. These responsibilities reflect the obligation of the MAP lender to not only ensure the skill and competency of the lender's principal staff members, but to also ensure that the MAP lender is operating with the integrity contemplated by the HFSH Act.
The MAP approval tiers, set out in § 200.1411(b) and § 200.1413(b), are based on HUD's experience in administering the MAP program, which has shown that the most difficult programs to underwrite are those for new construction and substantial rehabilitation or that involve various sources of government assistance. HUD recognizes that all MAP lenders and underwriters do not necessarily have the skills and experience to competently handle all the MAP programs. Tiered approval will assure that MAP programs with greater underwriting demands and higher risk will require participants to have greater expertise. Both new and existing lenders and underwriters must comply with tier requirements to submit an application under MAP and must be approved by tier based upon meeting the tier qualifications. Section 200.1413 of the proposed rule set outs the lender eligibility and application process for MAP approval.
Section 200.1415 of the proposed rule establishes the MAP eligibility and application approval process for underwriters. The addition of a separate MAP eligibility and approval process for underwriters underscores the significance of having an experienced and skilled underwriter for MAP processing. Consistent with § 200.1415 concerning underwriter eligibility, § 200.1425 provides for post-approval training for underwriters, and § 200.1427 provides that HUD may terminate the approval of an underwriter that has not submitted a pre-application or application for Firm Commitment for a period of 2 years.
The tier approval designation for which MAP lenders and underwriters will be approved will be based on their multifamily transaction experience, as evidenced by recently closed loans and each loan's performance. As provided in § 200.1411(b), HUD will establish four approval tiers:
As provided in the accompanying notice, published elsewhere in today's
With respect to tier approval, § 200.1423 permits an approved MAP lender or underwriter to submit an application at any time requesting approval at a higher tier than originally assigned to the MAP lender or underwriter. In determining whether the MAP lender or underwriter meets the criteria for a higher tier, HUD will follow the procedures in §§ 200.1413, 200.1415, and 200.1417.
A key goal of this proposed rule is to assure a high level of quality and integrity of FHA-approved lenders that are approved to be MAP lenders. As provided in § 200.1407, a MAP-
Currently, MAP approval designation does not expire unless there is an enforcement action that results in termination, or there is an eligibility requirement that the FHA-approved lender no longer meets. As provided in § 200.1417(b), this rule proposes to change the existing MAP system by requiring MAP approved lenders to apply to renew their approval every 4 years. At such time, the MAP lender's performance will be reviewed and FHA will determine whether the MAP-approval designation should be renewed. This proposed rule provides in § 200.1421, that no later than 90 days before the date of the end of the 4-year period of a MAP lender's approval, the MAP lender must reapply for approval. The requirement to renew MAP-lender designation allows FHA to assess the lender's 4-year performance as a MAP lender, and determine whether the FHA-approved lender's designation as a MAP lender should be renewed or disapproved, and if it should be renewed at the tier for which the FHA-approved lender was previously approved or at a lower tier, if so warranted.
For example, FHA may determine that the MAP lender's experience during the preceding 4 years is not sufficient or at a level of performance for the FHA-approved MAP lender to maintain its current tier approval; however, the FHA-approved MAP lender can be renewed under a lower tier at which its performance has been satisfactory. The proposed period for MAP approval is based on HUD's experience that MAP lenders' performance, underwriting practices, and business processes typically evolve over time as changes in personnel, management, and market conditions occur. As a result, the capacity of the institution may be markedly different from when it was originally approved and assigned to a tier by HUD. HUD has determined that a 4 year approval period appropriately balances the need to protect the FHA insurance fund with HUD's desire to minimize inconvenience to lenders. Upon application for renewal, the lender's record, including any sanctions or enforcement actions taken against the lender, its default and claim rates, and the overall performance of its underwritten or closed loans will be taken into account when determining whether MAP approval should be renewed or disapproved. Although a lender's initial and ongoing MAP approval period will normally be for 4 years, the term of approval may be shorter based upon a review of the lender's application and record.
The proposed rule provides, in § 200.1417(b)(3), that FHA may also grant conditional MAP lender or underwriter approval if the lender or underwriter lacks experience in processing or underwriting FHA loan applications. If the lender or underwriter satisfies the conditions imposed by FHA, for example, by undertaking additional training within a specified period of time or completing a predetermined number of acceptably underwritten closings, then full approval may be granted upon completion of the condition. Conditional approval, however, will not be indefinite. FHA will impose a deadline for the completion of the conditions for which full approval is necessary, usually one year from the date on which conditional approval is granted. Conditional approval may be granted for initial MAP approval, or may be granted in cases where a currently approved MAP lender requests an upgrade in tier approval.
The proposed rule provides, in § 200.1419, that MAP lender and underwriter approvals issued prior to the effective date of the final rule under this rulemaking will expire 45 days following the lender's or underwriter's receipt of a letter from HUD inviting the lender or underwriter to apply for tier approval. HUD anticipates that it will send such letters to approximately 25 percent of lenders and underwriters with existing approvals per year, for 4 years, and that this pace may vary depending upon HUD's resources for processing applications. If the lender or underwriter submits a timely application for tier approval, the existing approval will continue to be valid until HUD notifies the applicant of the action it is taking on the application for tier approval. A lender or underwriter that fails to respond in a timely manner to the letter will be eligible for approval at Tier 1 for a period of time as provided for conditional approvals in § 200.1417(b).
In addition to the new sections discussed above in this preamble, new § 200.1405 addresses the multifamily programs eligible for MAP processing, which will be posted on HUD's Web site; such postings will ensure that the most up-to-date list of eligible MAP multifamily programs is available to the public. As noted earlier, § 200.1407 lists the responsibilities of a MAP lender. As also noted earlier, § 200.1413(b) addresses the tier-specific criteria that lenders must meet. Paragraph (a) of this section, § 200.1413(a), addresses the general requirements for MAP-lender approval. Section 200.1419 addresses appeals, and provides that an applicant may submit a written appeal of any HUD decision regarding the applicant under §§ 200.1411 through 200.1427. This section provides that the appeal must be submitted to HUD within 30 days of the date of the applicant's receipt of HUD's written notification to the applicant of its decision. This section also provides that HUD will respond to the applicant's appeal within 60 days of HUD's receipt of the applicant's appeal, and that if HUD's appeal decision confirms HUD's original decision, no further appeals will be accepted.
As noted earlier in this preamble, this proposed rule builds upon the existing regulations in 24 CFR part 200, subpart Y, which currently address MAP enforcement and sanctions. The enforcement provisions remain in place with certain organization revisions. For example, the proposed rule would eliminate provisions vesting existing authorities to undertake certain enforcement and corrective actions against MAP lenders and underwriters in a MAP Lender Review Board. HUD has found that it is unnecessary to create and maintain such a board because it is duplicative of other offices within HUD, such as the Lender Qualifications and Monitoring Division that are responsible for monitoring and ensuring compliance with MAP requirements. This change would not alter the existing authorities to take such actions, nor the procedural protections,
Since its inception, MAP has been shown to increase efficiency in processing multifamily mortgage applications without increasing risk to FHA. Under the current structure, an approved lender or underwriter can originate any qualifying multifamily mortgage. This rule proposes to further increase efficiency by approving lenders and underwriters for one of four tiers based on their origination experience.
The primary benefit of changes proposed by this rule is to further increase the efficiency and processing of multifamily mortgage applications. The tiered structure will decrease the number of rejected applications, reducing time spent by lenders and FHA staff in reviewing applications. This change will be accomplished by better aligning lenders and underwriters with the programs with which they are most experienced. FHA does not expect a change in volume of their multifamily originations as a result of the creation of tiers within the MAP program or a significant shift of business between lenders within MAP. Instead, HUD expects that the number of unsuccessful applications will decrease.
In FY 2011, approximately 230 multifamily mortgage applications were not approved. FHA staff spent approximately 400 hours processing MAP mortgage applications. The Bureau of Labor Statistics reports almost $40 per hour as the median wage for government employees in financial operations. Meanwhile, lenders spent about 450 hours of staff time preparing applications for new construction or substantial rehabilitation and approximately 300 hours of staff time on mortgage applications for refinance. Based on HUD's knowledge of the industry, the hourly rate for staff preparing applications is approximately $75. If implementation of the changes proposed by this rule is successful in eliminating 75 percent of these unapproved applications, FHA would save $2.772 million in staff time and lenders would save $5.003 million in staff time. In sum, this proposed rule can be expected to produce benefits totaling $7.775 million.
In addition to creating tiers, this rule proposes to require renewal as a MAP lender every 4 years.
Based on knowledge of industry wages, the estimated hourly wage of lenders and underwriters that prepare these types of documents is approximately $100. The table below shows the total cost estimate per category. The total cost to lenders and underwriters as a result of this rule would be $398,300.
As a processing system, much of the processes of MAP as the above tables reflect pertain to information collection (that is, submission of documentation to HUD and HUD review of the documentation) or recordkeeping. The MAP information collection requirements are subject to the notice and comment procedures of the Paperwork Reduction Act of 1995 (PRA). The requirements are currently approved under PRA and reflect OMB approval numbers. Consistent with the requirements of the PRA, these requirements must be published for notice and comment every 3 years. The changes that this rule would make to the current information collection requirements are set out in the table provided in the following section of the preamble, Section IV, and the public comment that this rule solicits also solicits comment on the reporting and recordkeeping burden.
Executive Order (EO) 13563, entitled “Improving Regulation and Regulatory Review,” was signed by the President on January 18, 2011, and published on January 21, 2011 (76 FR 3821). This EO requires executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Section 4 of the EO, entitled “Flexible Approaches,” provides, in relevant part, that where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. HUD submits that the changes proposed by this rule to the MAP system are consistent with the EO's directions. As the preceding section discussed, the changes proposed by this rule will increase efficiency in the MAP system both for HUD and MAP approved lenders.
The information collection requirements contained in this rule have been submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.
The burden of the information collections in this rule is estimated as follows:
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this collection of information to:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the information collection requirements in this rule. Comments must refer to the proposal by name and docket number (FR-444-P-01) and must be sent to:
Interested persons may submit comments regarding the information collection requirements electronically through the Federal eRulemaking Portal at
The Regulatory Flexibility Act (5 U.S.C. 601
Through this rule, HUD is proposing improved oversight of the MAP system, to meet the statutory directive that HUD ensure that only lenders of integrity are approved by FHA as FHA-approved mortgagees, and remain lenders of integrity, competency, and skill after FHA approval is granted. HUD is not proposing significant changes to participation in the MAP system. The eligibility requirements essentially remain the same, with only minor adjustment to ensure that the lenders have experience in processing the more complex transactions. However, HUD is proposing that MAP lenders have their MAP approval designation renewed every 4 years. This renewal-approval process will improve the quality of monitoring of MAP lenders by HUD, because the renewal process provides for a minimum performance review of the MAP lender by HUD every 4 years. The new requirements introduced by HUD through this proposed rule pertain to a MAP lender's performance, regardless of whether the MAP lender is small or large.
The codification of the eligibility criteria, together with HUD's oversight requirements, which are already codified, will provide a convenient location for FHA-approved lenders and other interested parties to reference the key features and requirements of the MAP system. For these reasons, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities.
Notwithstanding HUD's determination that this rule would not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding less burdensome alternatives to this rule that would meet HUD's objectives as described in this preamble.
This rule does not direct, provide for assistance or loan and mortgage insurance or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. The rule is, therefore, categorically excluded under 24 CFR 50.19(c)(k1) and a Finding of No Significant Impact (FONSI) does not need to be prepared for this document.
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the executive order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any federal mandate on any state, local, or tribal government or the private sector within the meaning of UMRA.
Administrative practice and procedure, Claims, Equal employment opportunity, Fair housing, Housing standards, Lead poisoning, Loan programs—housing and community development, Mortgage insurance, Organization and functions (Government agencies), Penalties, Reporting and recordkeeping requirements, Social Security, Unemployment compensation, Wages.
For the reasons stated in the preamble, HUD proposes to amend 24 CFR part 200, as follows:
1. The authority citation for 24 CFR part 200 continues to read as follows:
12 U.S.C. 1702-1715z-21; 42 U.S.C. 3535(d).
2. Revise the heading of subpart Y and add §§ 200.1401, 200.1403, 200.1405, 200.1407, 200.1409, 200.1411, 200.1413, 200.1415, 200.1417, 200.1419, 200.1421, 200.1423, 200.1425, 200.1427, and 200.1429, and undesignated headings, and revise the subpart table of contents to read as follows:
(a) MAP is a national accelerated processing system for the FHA multifamily mortgage insurance programs. An FHA-approved lender that is approved to process multifamily mortgage insurance applications under MAP is responsible for preparation of the majority of the exhibits involved in the processing of a multifamily mortgage insured by FHA, such as the appraisal required for an application for mortgage insurance, and for making a recommendation to HUD based upon the lender's processing and underwriting. HUD, however, reviews the lender's exhibits and makes the final underwriting decision.
(b) This subpart establishes the criteria by which a new or existing FHA-approved lender or underwriter receives and maintains MAP approval, the basic responsibilities of a MAP lender, the manner in which FHA will monitor a MAP Lender's performance, the enforcement actions that FHA may take against a MAP lender for violation of requirements, and the due process procedures available to a MAP lender. Unless superseded by the requirements of this part, the MAP processing instructions, submission, and reporting requirements issued through supplemental guidance remain applicable to the MAP system.
The definitions in 24 CFR 200.3 are applicable to this subpart. Additionally, as used in this subpart:
FHA-insured multifamily programs that are eligible for processing under MAP are listed on HUD's Web site at
(a) A MAP lender shall comply with such processing instructions, submission, and reporting requirements through the regulations of this subpart and as may be otherwise specified by HUD through supplemental guidance.
(b) A MAP lender must submit to the HUD office, as designated by HUD, the qualifications of the MAP lender's principal staff members or consultants who will be reviewing or preparing the lender's application for mortgage loan insurance.
(c) MAP lenders must establish and maintain separation between the underwriting and origination functions to ensure that individuals performing underwriting functions do not face any incentive to approve a loan that does not meet applicable underwriting standards. Minimum standards for establishing and maintaining such separation include, but are not limited to, the following:
(1) An individual may not underwrite or participate in underwriting a loan if the individual will receive or expects to receive either directly or indirectly any compensation that is contingent upon origination of that loan;
(2) Underwriting staff are not evaluated by origination staff, and compensation of underwriting staff shall not be tied to loan production levels;
(3) Underwriters must be full-time, salaried employees of the lender and may not be independent contractors or temporary workers;
(4) Origination staff shall be precluded from hiring contractors, such as appraisers or market analysts, on behalf of underwriters; and
(5) MAP lenders shall ensure that origination staff does not have management authority over or influence on the duties or conclusions of underwriting staff.
(d)(1) A MAP lender must submit annually to HUD, in accordance with procedures specified by HUD, including, but not limited to, the requirements of 24 CFR 200.62, an update of MAP lender status, certified by an individual who is authorized to bind the MAP lender. The certified update must be submitted no later than June 30 of each year and must:
(i) List the names of the following individuals:
(A) The MAP lender's MAP-approved underwriters and the tiers at which they are approved;
(B) The MAP lender's construction loan administrators (if applicable); and
(C) Individuals who are authorized to bind the MAP lender by signing FHA mortgage insurance applications; and
(ii) State that all of the MAP lender's MAP-approved underwriters have received tier approval and have attended the training required under § 200.1425.
(2) False claims and statements may result in criminal and civil penalties pursuant to 12 U.S.C. 1735f-14, 18 U.S.C. 1001, 1010, 1012, and 31 U.S.C. 3729, 3802.
(a)
(1) The lender is approved by and is in good standing with HUD as a MAP lender for the loan transaction for which the application is submitted; and
(2) The underwriter who will underwrite the loan and sign the underwriter's narrative is approved by and is in good standing with HUD as a MAP underwriter for that lender and for the tier designation and loan program under which the application is submitted. Approval as a MAP underwriter does not entitle an underwriter to underwrite loans for a lender other than for the MAP-approved lender that submitted the underwriter application approved by HUD. A MAP-approved lender that employs an underwriter previously approved as an underwriter for another MAP-approved lender must submit an application for underwriter approval in accordance with § 200.1415(b), and HUD will evaluate the application and take action in accordance with § 200.1417.
(b)
(1) Tier 1: MAP-eligible acquisition and refinancing programs without government subsidies;
(2) Tier 2: MAP-eligible acquisition and refinancing programs with or without government subsidies;
(3) Tier 3: All MAP-eligible programs without government subsidies; and
(4) Tier 4: All MAP-eligible programs, with or without government subsidies.
(c)
To be eligible for designation as a MAP lender, a lender must meet the general requirements under paragraph (a) of this section and the applicable tier-specific requirements under paragraph (b) of this section. HUD will not approve the application of a lender that does not meet the Tier 1 requirements.
(a)
(1) Must be approved as an FHA-approved lender under parts 202 of this chapter;
(2) Must not be subject to judgments arising from lawsuits or administrative proceedings that would adversely impact its ability to conduct business as a lender, or subject to any of the ineligibility criteria specified in 24 CFR 202.5(j); and
(3) Must have an employee who is approved by HUD as a MAP underwriter. Application for the qualifying MAP underwriter approval may be submitted prior to or simultaneously with a lender's application for MAP-lender approval.
(b)
(1) The lender must have adequate capacity and experience in processing and in underwriting covered loan transactions for that tier using FHA insurance programs, or non-FHA transactions that are equivalent to covered transactions for that tier.
(i) A non-FHA transaction will be deemed the equivalent of using FHA insurance programs for a covered transaction for a tier if HUD determines that the quality and scope of underwriting and processing required and actually performed for the non-FHA transaction are equivalent to that required using FHA insurance programs for the covered transaction. Non-FHA transactions that may be used to demonstrate tier qualifications include those of Fannie Mae, Freddie Mac, state housing finance agencies, conventional lenders, and commercial banks;
(ii) HUD will from time to time issue the quantity, specific characteristics, and recentness of transactions that a lender must have processed or underwritten in order to have the adequate recent experience required for each tier. Each issuance will be preceded by notice and the opportunity for public comment.
(2) The lender must have a satisfactory record processing and underwriting covered transactions for the tier at which approval is requested. In reviewing the lender's record, HUD will consider enforcement actions taken against the lender, warning letters issued to the lender, the lender's default and claim rates, and the overall performance of its previously underwritten or closed loans.
(c)
(2) HUD may from time to time announce its suspension of acceptance of applications under this section. The announcement shall specify the reasons for the suspension of acceptance of applications.
(3) An FHA-approved lender that has had its MAP lender designation terminated may not submit an application for MAP lender designation for a period of one year following the date of termination of the prior MAP lender designation.
(a) To be eligible for designation as a MAP underwriter, an individual must be a full-time employee of the lender that is seeking or has received approval as a MAP Lender, and must have adequate experience in underwriting covered loan transactions using FHA insurance programs for the specific tier for which the underwriter seeks designation, or non-FHA transactions that are equivalent to covered transactions for that tier.
(1) A non-FHA transaction will be deemed the equivalent of using FHA insurance programs for a covered transaction for a tier if HUD determines that the quality and scope of underwriting and processing required and actually performed for the non-FHA transaction are equivalent to that required using FHA insurance programs for the covered transaction. Non-FHA transactions that may be used to demonstrate tier qualifications include those of Fannie Mae, Freddie Mac, state housing finance agencies, conventional lenders, and commercial banks.
(2) HUD will from time to time issue the quantity, specific characteristics, and recentness of transactions that an underwriter must have underwritten in order to have the adequate recent experience required for each tier. Each issuance will be preceded by notice and the opportunity for public comment.
(b) A lender must submit an underwriter's application for MAP-underwriter approval or for underwriter-tier qualification in such form as required by HUD that demonstrates that the underwriter meets the applicable eligibility requirements under this section.
(a) HUD will review a MAP lender or underwriter approval application, along with any information from HUD offices where the applicant's prior loan applications or exhibits have been submitted within the preceding time period specified by HUD.
(1)(i) If HUD determines that the applicant meets the criteria for approval in § 200.1413 or § 200.1415, as applicable, the applicant is eligible for approval for the requested tier and HUD will notify the applicant of its decision to designate the lender or underwriter as a MAP lender or underwriter under the tier for which the lender or underwriter applied.
(ii) If HUD determines that the applicant does not meet the criteria for the requested tier but the applicant meets the criteria for approval at a lower tier, HUD may approve the application at the lower tier. In such a case, HUD will notify the applicant of its eligibility for approval at a lower tier and advise the applicant of the reasons that HUD
(iii) Whether HUD approves an applicant at a requested tier under paragraph (a)(1)(i) of this section or at a lower tier under paragraph (a)(1)(ii) of this section, HUD reserves the right to limit the number of units or the dollar amount per loan application that an approved applicant may process, when HUD determines that there is a necessity to limit the loans being processed to such amount or size, as HUD may specify by notice.
(2) If HUD determines that the applicant does not meet the criteria for approval in § 200.1413 or § 200.1415, as applicable, HUD will disapprove the application and notify the applicant of its decision and of the reason for the disapproval.
(3) If HUD is unable to determine the eligibility of an applicant, HUD may, at its discretion, disapprove the application and notify the applicant of the reason for its decision or ask the applicant to correct identified deficiencies in the application and resubmit it.
(b)
(1) Except as provided under paragraph (b)(3) of this section and under § 200.1427, the approval of an underwriter will not expire so long as the underwriter remains active and in the employment of the lender under which approval was granted, and without interruption.
(2) Except as provided in paragraphs (b)(3) of this section, or for reasons otherwise specified by HUD in writing, the approval of a lender as a MAP lender is valid for a period of 4 years from the date on which HUD notifies the lender of the approval;
(3)(i) A lender or underwriter without prior experience in processing or underwriting FHA loan applications may be eligible for conditional approval. Conditional approval will be valid for a period of one year from the date on which HUD notifies the applicant of the approval, unless HUD decides to allow an extension of the period of conditional approval for an additional one-year period. During the conditional approval period, HUD may impose limits on the number of loan applications that may be submitted, or the number of units or dollar amount per loan application, or any combination of these limits.
(ii) To be eligible for conversion to full MAP approval status, the lender or underwriter must, during the period of conditional approval:
(A) Underwrite and submit to HUD loan applications that result in Firm Commitments from HUD, in a minimum number as specified by HUD at the time conditional approval is granted, in accordance with the applicant's experience;
(B) Satisfy any additional conditions that HUD has imposed on the lender or underwriter at the time the conditional approval was granted; and
(C) Demonstrate acceptable capacity to process and underwrite loan applications using FHA insurance programs for covered loan transactions for the tier for which conditional approval has been granted.
(iii) The approval of a lender or underwriter that is converted from conditional to full MAP approval status is valid, unless otherwise specified by HUD, for the remainder of the 4-year period beginning on the date that HUD notified the applicant of its initial conditional approval.
(iv) If a lender or underwriter does not comply with the requirements under paragraphs (b)(3)(ii)(A) through (C) of this section, HUD may extend the term of conditional approval or terminate the conditional approval.
(a)
(1) Four years following the date on which the approval was granted;
(2) Forty-five days following the lender's or underwriter's receipt of a letter from HUD inviting the lender or underwriter to apply for tier approval, if by such date the lender or underwriter has not submitted an application in accordance with § 200.1413(c) or 1415(b); or
(3) Upon HUD's notification of the lender or underwriter of the action HUD has taken on the lender or underwriter's application submitted in accordance with § 200.1413(c) or § 200.1415(b), provided that the lender or underwriter submitted the application within 45 days of the date of the lender or underwriter's receipt of a letter from HUD inviting the lender or underwriter to apply for tier approval.
(b)
(a) No later than 90 days before the date of the expiration of MAP-lender approval, the MAP lender may submit an application, in such form as required by HUD, for renewal of MAP-lender approval. The application for renewal must demonstrate that the lender continues to meet the applicable eligibility requirements under § 200.1411 and § 200.1413 of this part.
(b) HUD will review a lender's application for renewal of MAP approval, along with any information provided by HUD offices to which the applicant's loan applications or exhibits have been submitted within the previous approval period or periods, up to a maximum of 4 years. HUD may determine that the lender's experience or the performance of the lender's loans endorsed during the preceding 4 years is not sufficient for the lender to renew its approval at the current tier. In considering an application for renewal of MAP approval, HUD will follow the procedures and may take any action described in § 200.1417.
(a) An approved lender or underwriter may submit an application, in such form as required by HUD, for approval at a higher tier. The lender or underwriter must demonstrate that it meets the applicable eligibility requirements for the tier of approval that the lender or underwriter is seeking.
(b) HUD will review a lender or underwriter's application for MAP approval at a higher tier, along with any information provided by HUD offices where the applicant's loan applications or exhibits have been submitted within the previous approval period or periods, up to a total period of time as published by HUD for public comment. In considering an application for MAP approval at a higher tier, HUD will follow the procedures and may take any action described in § 200.1417. Approval of a MAP lender at a higher tier shall be valid as provided in § 200.1417(a)(1).
Newly approved MAP underwriters must attend a MAP training session provided or approved by HUD in order to be eligible to satisfy the underwriter requirement at § 200.1411(a)(2).
An underwriter who at the time of the lender's annual certification to HUD pursuant to § 200.1407(d) has not submitted a pre-application or application for Firm Commitment for a period of 2 years will be designated as inactive. Inactive underwriters may be terminated from the MAP program because of inactivity and, if so, must reapply for approval to participate in MAP programs.
(a) An applicant may submit a written appeal of any HUD decision regarding the applicant under §§ 200.1411 through 200.1427 of this subpart. Any such appeal must be submitted to the designated HUD appeal official within 30 days of the date of receipt of HUD's written notification to the applicant of HUD's decision. HUD's written notification will advise who is the designated HUD appeal official and provide the address for such official. The written appeal may set forth the reasons why the HUD decision should be reconsidered or changed, or may request an informal conference, or both.
(b) HUD will respond to an applicant's appeal within 60 days from the date of HUD's receipt of the written appeal. If HUD's response to the appeal is to confirm HUD's original decision, no further appeal will be accepted from the applicant.
3. Immediately before § 200.1500, add an undesignated heading, to read as follows:
4. In § 200.1505, revise paragraph (c) to read as follows:
(c)
5. In § 200.1510, revise paragraphs (a) and (b)(1) to read as follows:
(a)
(b)
6. In § 200.1515, revise paragraph (a) to read as follows:
(a)
7. In § 200.1520, revise paragraph (a) to read as follows:
(a)
8. In § 200.1525, revise paragraph (a) to read as follows:
(a) HUD staff, as authorized, may negotiate a settlement agreement with a MAP lender before or after the issuance of a warning letter or referral to HUD.
9. In § 200.1535, revise the heading and paragraphs (a)(1) and (a)(2), paragraph (b) introductory text, and (f)(1) to read as follows:
(a)
(i) Conducting an impartial review of all information and documentation submitted to HUD; and
(ii) Making factual determinations that there has been a violation of MAP requirements.
(2)
(b)
(f)
10. Revise the heading of § 200.1545 to read as follows:
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a drawbridge operating schedule for the Maple-Oregon and Michigan Street Bridges across the Sturgeon Bay Ship Canal, at miles 4.17 and 4.3, in Sturgeon Bay, Wisconsin. The establishment of this schedule is necessary due to the construction of the Maple-Oregon Street Bridge and the completed rehabilitation of the Michigan Street Bridge. The proposed regulation also confirms the winter drawbridge schedules for all three drawbridges over Sturgeon Bay Ship Canal, including the two bridges above and the Bayview Bridge at mile 3.0.
Comments and related material must reach the Coast Guard on or before: May 14, 2012.
You may submit comments identified by docket number USCG-2011-1109 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Lee Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone (216) 902-6085, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-1109), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
The proposed rule establishes drawbridge schedules following the construction of the new Maple-Oregon Street Bridge and the extensive rehabilitation of the existing Michigan Street Bridge. The proposed rule is expected to provide for the safe and efficient passage of vessels requiring drawbridge openings, as well as the efficient movement of vehicular traffic in Sturgeon Bay.
The Sturgeon Bay Ship Canal is approximately 8.6 miles long and provides a navigable connection between Lake Michigan and Green Bay. The area experiences a significant increase in vehicular and vessel traffic during the peak tourist and navigation season between approximately Memorial Day and Labor Day each year. There are a total of three highway drawbridges across the waterway. The Michigan Street Bridge provides unlimited vertical clearance in the open position and 14 feet in the closed position. Maple-Oregon Bridge, provides unlimited vertical clearance in the open position and 25 feet in the closed position. Bayview Bridge provides unlimited vertical clearance in the open position and 42 feet in the closed position. Both Michigan Street and Maple-Oregon Bridges serve the downtown Sturgeon Bay area and are located approximately 750-feet apart on the canal.
A final rule was published on October 24, 2005 in the
The Coast Guard coordinated with all local stakeholders before, during, and after the test drawbridge schedule and did not receive any adverse comments to the test schedule.
The Wisconsin Department of Transportation (WDOT) requested scheduled drawbridge openings for both Michigan Street and Maple-Oregon Bridges so vehicular traffic congestion would not develop on downtown Sturgeon Bay streets due to unscheduled bridge openings. This proposed rule provides at least two bridge openings per hour for both Michigan Street and Maple-Oregon Street bridges, compared to the one bridge opening per hour that was in place during the construction and rehabilitation of the two highway bridges. It also retains the test schedule requirement to open the bridge if at least 10 vessels have accumulated at either bridge waiting for an opening. The proposed rule also establishes the winter operating date for Maple-Oregon Bridge (January 1 through March 14) and rearranges the order of the three drawbridges to be presented geographically in the regulatory language. The proposed rule was developed with all known stakeholders to provide for the safe and efficient movement of both vessel and vehicular traffic, including keeping the bridge openings on a scheduled basis to reduce potential vehicular traffic congestion in Sturgeon Bay. The Coast Guard did not receive any adverse comments during the test schedule and is therefore proposing to implement the test schedule as a permanent schedule for Sturgeon Bay drawbridges.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866. The Office of Management and Budget has not reviewed it under that Order. This determination is expected to improve traffic congestion and safety in the vicinity of the drawbridge and does not exclude bridge openings for vessel traffic.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule continues to provide at least two drawbridge openings per hour each day for recreational vessels during peak hours compared to one opening per hour under the current regulation. Additionally, all vessels that do not require bridge openings may transit the drawbridges at any time. All known small entities were consulted and included in the development of the test drawbridge schedule in 2011, and have not provided any adverse comments.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Lee D. Soule, Bridge Management Specialist, U.S. Coast Guard, telephone 216-902-6085, email
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to revise 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
2. Revise § 117.1101 to read as follows:
(a) The Bayview (SR 42/57) Bridge, mile 3.0 at Sturgeon Bay, shall open on signal, except from December 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of intended passage.
(b) The draw of the Maple-Oregon Bridge, mile 4.17 at Sturgeon Bay, shall open on signal, except as follows:
(1) From March 15 through December 31, need open on signal for recreational vessels only on the quarter hour and three-quarter hour, 24 hours a day, if needed. However, if more than 10 vessels have accumulated at the bridge, or vessels are seeking shelter from severe weather, the bridge shall open on signal. This drawbridge, along with the Michigan Street drawbridge, shall open simultaneously for larger commercial vessels, as needed.
(2) From January 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of intended passage.
(c) The draw of the Michigan Street Bridge, mile 4.3 at Sturgeon Bay, shall open on signal, except as follows:
(1) From March 15 through December 31, need open on signal for recreational vessels only on the hour and half-hour, 24 hours a day, if needed. However if more than 10 vessels have accumulated at the bridge, or vessels are seeking shelter from severe weather, the bridge shall open on signal. This drawbridge, along with the Maple-Oregon Street drawbridge, shall open simultaneously for larger commercial vessels, as needed.
(2) From January 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of intended passage.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a safety zone in the Captain of the Port Sault Sainte Marie zone. This proposed safety zone is intended to restrict vessels from certain portions of water areas within Sector Sault Sainte Marie Captain of the Port zone, as defined by 33 CFR 3.45-45. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays.
Comments and related materials must be received by the Coast Guard on or before May 14, 2012.
You may submit comments identified by docket number USCG-2012-0200 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the
If you have questions on this proposed rule, call or email MST3 Kevin Moe, Prevention Department, Coast Guard, Sector Sault Sainte Marie, MI, telephone (906) 253-2429, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0200), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting, but you may submit a request for one by using one of the four methods specified under
On the evening of 28 June 2012, The International Bridge Administration will be celebrating the International Bridge 50th Anniversary. As part of that celebration, fireworks will be launched from the northeast pier of the U.S. Army Corp of Engineers Soo Locks. The Captain of the Port Sault Sainte Marie has determined that the fireworks event poses various hazards to the public, including explosive dangers associated with fireworks, and debris falling into the water.
To safeguard against the dangers posed by the International Bridge 50th Anniversary Celebration fireworks, the Captain of the Port Sault Sainte Marie has determined that a temporary safety zone is necessary. Thus, the Captain of the Port Sault Sainte Marie proposes to establish a safety zone on the St. Mary's River to include all waters within a 750-foot radius around the eastern portion of the U.S. Army Corp of Engineers Soo Locks North East Pier, centered in position: 46°30′19.66″ N, 084°20′31.61″ W.
This proposed safety zone will be effective and enforced from 10 p.m. until 12 p.m. on June 28, 2012. Entry into, transiting, or anchoring within the proposed safety zone is prohibited unless authorized by the Captain of the Port Sector Sault Sainte Marie, or his on-scene representative. All persons and vessels authorized to enter the proposed safety zone shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard determined that this rulemaking would not be a significant regulatory action because the safety zone will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters in that vessels may still transit unrestricted portions of the waterways. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port Sault Sainte Marie.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit around the eastern portion of the U.S. Army Corp of Engineers Soo Locks North East Pier, Sault Sainte Marie Michigan, between 10 p.m. and 12 p.m. on June 28, 2012.
This proposed safety zone will not have a significant economic impact on a substantial number of small entities for the following reason; this rule will be in effect for only two hours. Vessel traffic may still safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Sault Sainte Marie to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact MST3 Kevin Moe, Prevention Department, Coast Guard Sector Sault Sainte Marie, MI at (906) 253-2429. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule will not affect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that may disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T09-0200 to read as follows:
(a)
(b)
(1) The Captain of the Port, Sector Sault Sainte Marie may suspend at any time the enforcement of the safety zone established under this section.
(2) The Captain of the Port, Sector Sault Sainte Marie, will notify the public of the enforcement and suspension of enforcement of the safety zone established by this section via any means that will provide as much notice as possible to the public. These means might include some or all of those listed in 33 CFR 165.7(a). The primary method of notification, however, will be through Broadcast Notice to Mariners and local Notice to Mariners.
(c)
(1) Designated representative means any Coast Guard commissioned, warrant, or petty officer designated by the Captain of the Port Sault Sainte Marie to monitor these safety zones, permit entry into these safety zones, give legally enforceable orders to persons or vessels within these safety zones, or take other actions authorized by the Captain of the Port.
(2) Public vessel means a vessel owned, chartered, or operated by the United States or by a State or political subdivision thereof.
(d)
(2) All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port Sault Sainte Marie or a designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.
(3) When the safety zone established by this section is being enforced, all vessels must obtain permission from the Captain of the Port Sault Sainte Marie or his or her designated representative to enter, move within, or exit that safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or his or her designated representative. While within the safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.
(e)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to partially approve and partially disapprove the remaining portion of a revision to the Nevada State Implementation Plan (SIP) to implement the regional haze program for the first planning period through July 31, 2018. This Notice proposes to approve the chapter of Nevada's Regional Haze SIP that requires Best Available Retrofit Technology (BART) for emissions limits of oxides of nitrogen (NO
Comments: Written comments must be received at the address below on or before May 14, 2012.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2011-0130 by one of the following methods:
1.
2.
3.
4.
5.
Thomas Webb, U.S. EPA, Region 9, Planning Office, Air Division, Air-2, 75 Hawthorne Street, San Francisco, CA 94105. Thomas Webb can be reached at telephone number (415) 947-4139 and via electronic mail at
For the purpose of this document, we are giving meaning to certain words or initials as follows:
A. Regional Haze Rule
The CAA requires each state to develop plans, referred to as SIPs, to meet various air quality requirements. A state must submit its SIPs and SIP revisions to us for approval. Once approved, a SIP is enforceable by EPA and citizens under the CAA, and is, therefore, federally enforceable. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then we must promulgate a FIP to fill this regulatory gap. CAA section 110(c)(1). 40 U.S.C. 7410(c).
This proposed action is intended to fulfill the requirement that states adopt and EPA approve SIPs that address regional haze. In 1990, Congress added section 169B to the CAA to address regional haze issues, and we promulgated regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P. For a more detailed discussion please see our prior proposed action at 76 FR 36450 (June 22, 2011).
The Nevada Division of Environmental Protection (NDEP) adopted and transmitted its “Nevada Regional Haze State Implementation Plan” (Nevada RH SIP) to EPA Region 9 with a letter dated November 18, 2009. The Nevada RH SIP was complete by operation of law on May 18, 2010. Nevada provided public notice and held a public hearing on the proposed Best Available Retrofit Technology (BART) controls for four stationary sources, including RGGS, on April 23, 2009. The State submitted to EPA additional documentation of public process and adoption of a more stringent emission limit for one of the BART sources on February 18, 2010. Revised Nevada Division of Environmental Protection BART Determination Review of NV Energy's Reid Gardner Generation Station Units 1, 2 and 3, Revised October 22, 2009 (hereinafter “RGGS BART Determination”). Nevada included in its SIP submittal NDEP's responses to written comments from EPA Region 9, the National Park Service, and a consortium of conservation organizations. NDEP responded to comments on its RGGS BART Determination for NO
On June 22, 2011, EPA proposed to approve the entire Nevada Regional Haze SIP submittal, including the RGGS BART Determination. 76 FR 36450 (June 22, 2011). EPA received adverse comments on the proposed approval, including specific comments on NDEP's modeling and cost analysis of the RGGS BART Determination for NO
On December 13, 2011, EPA signed its final approval of the Nevada RH SIP submittal that was published in the
On December 22, 2011, we sent a letter via email to NDEP requesting clarification on several issues related to the comments on the RGGS BART Determination for NO
EPA requested further information from NDEP on March 14, 2012 regarding the emissions limit that NDEP had proposed as BART for Unit 3.
In response, NDEP informed EPA on March 22, 2012 that it had conducted further analysis resulting in NDEP's conclusion to lower the BART emissions limit for Unit 3 BART for NO
The Nevada RH SIP included an evaluation of SNCR finding that it would result in a higher emissions limit for each unit than ROFA with Rotamix.
Today's proposal addresses the RGGS BART Determination for NO
Therefore, we are proposing to approve NDEP's determination that NO
Regional haze SIPs must establish a long-term strategy that ensures reasonable progress toward achieving natural visibility conditions in each Class I area affected by the state's emissions. For a further discussion of this topic, please see our Notice of Proposed Rulemaking. 76 FR 36450 (June 22, 2011).
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
Successful implementation of the regional haze program will require long-term coordination among states, tribal governments and various federal agencies. EPA published on July 6, 2005, the
In their SIPs, states must 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 assigned to each factor, and as discussed above, generally have greater latitude in this determination for power plants that are smaller than 750 megawatts.
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 EPA approves the 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.
In two separate lawsuits, environmental groups sued EPA for our failure to take timely action with respect to the regional haze requirements of the CAA and our regulations. In particular, the lawsuits alleged that we had failed to promulgate FIPs for these requirements within the two-year period allowed by CAA section 110(c) or, in the alternative, fully approve SIPs addressing these requirements. EPA entered into a Consent Decree agreeing to sign a
There are four Class I areas within a 300 kilometer (km) radius of RGGS: Grand Canyon National Park, Bryce Canyon National Park, Zion National Park and Sycamore Canyon Wilderness. Joshua Tree National Monument is just on the border of the 300 km radius of RGGS. Of these, GCNP is the nearest area to RGGS, located at a distance of 85 km.
EPA's final approval of the Nevada RH SIP agreed with NDEP's determination of its BART-eligible sources within the state, and its determination of which sources were subject to BART based on their contribution to visibility impairment. EPA's final approval included NDEP's BART determinations for the Tracy, Fort Churchill, and Mohave electrical generating stations.
EPA has carefully reviewed NDEP's BART analysis, focusing primarily on the incremental cost of compliance and incremental degree of improvement of visibility between SCR and ROFA with Rotamix. After receiving extensive comments in August 2011, we performed a significant amount of additional analysis for these two factors, including revisions to control cost calculations and new CALPUFF visibility modeling.
NDEP's analysis: NDEP evaluated the costs of compliance for each feasible NO
When moving from a less stringent to a more stringent NO
The annualized costs listed in Table 1 are based on total capital installation costs and certain annual operating costs submitted to NDEP by Nevada Energy in its BART analysis. These costs were relied upon by NDEP and included in the SIP without modification. These cost calculations provided line item summaries of capital costs and annual operating costs, but did not provide further supporting information such as detailed equipment lists, vendor quotes, or the design basis for line item costs.
In its RH SIP, NDEP indicated that it based its NO
EPA's analysis: In reviewing the Nevada RH SIP and public comments, we identified several aspects of NDEP's approach to this factor with which we disagreed, and for which we have performed additional analysis. We received several public comments that NDEP's cost calculations were overestimated and based on methodology inconsistent with EPA's Control Cost Manual (CCM).
Based on our revised cost estimates, we do not consider these average and incremental cost effectiveness values for SCR with LNB and OFA as cost prohibitive. Our analysis of this factor indicates that costs of compliance (average and incremental) are not sufficiently large to warrant eliminating SCR from consideration.
The incremental cost effectiveness values for Units 1 and 2 are around $4,500/ton. Although EPA does not consider this incremental cost prohibitive, we note that the State has certain discretion in weighing this cost. Because RGGS is not a facility over 750 megawatts and therefore not subject to EPA's presumptive BART limits, the State may exercise its discretion more broadly in this particular determination.
NDEP's Analysis: As part of its BART analysis, Nevada Energy performed visibility modeling in order to evaluate the visibility improvement attributable to each of the NO
Based
As seen in these tables, NDEP's estimates of controlled emission rates differ from Nevada Energy's estimates. These differences are a result of NDEP's use of a different emission baseline in its calculations than Nevada Energy, which is discussed below in our discussion of existing pollution control technology. Since NDEP elected to calculate controlled emission rates by retaining the respective percent reduction values for each control technology, rather than each control technology's emission rate (lb/MMBtu), the use of a higher baseline emission rate results in higher emission estimates for each control technology option. As a result, NDEP's estimated performance for each control technology is less stringent than Nevada Energy's estimates. NDEP, however, did not perform additional modeling to determine the visibility improvement attributable to its emission estimates, and continued to rely on the visibility modeling performed by Nevada Energy.
As noted in the discussion of cost of compliance, part of NDEP's basis for rejecting control technology options more stringent that ROFA with Rotamix as BART was that the incremental costs of more stringent control options were not justified relative to their corresponding increases in visibility improvement. However, without updated visibility modeling that indicates the visibility improvement attributable to NDEP's emission estimates, we do not consider NDEP to have properly considered the appropriate magnitude of incremental visibility improvement in reaching its determination. As discussed below, we have performed our own visibility modeling to determine these visibility impacts.
A more detailed discussion of our visibility modeling, including full visibility results for all Class I areas located within 300 km of RGGS, is in our TSD and associated emission calculation spreadsheet. A summary of visibility results is presented in Table 5 below.
As seen in these results, the total incremental visibility improvement resulting from the installation of SCR with LNB and OFA compared to ROFA with Rotamix is 0.09 dv. This occurred at Grand Canyon National Park, the Class I area with the highest impact. In addition, we note that even our additional scenario that models the SCR control option at a 0.06 lb/MMBtu level of performance results in an incremental visibility improvement of only 0.10 dv relative to ROFA with Rotamix. Based on this small quantity of incremental visibility improvement, we agree with NDEP's conclusion that the control options more stringent than ROFA with Rotamix (or SNCR with LNB and OFA achieving the same emission limit) are not justified.
Non-air quality impacts identified by Nevada Energy in its BART analysis include the potential for ammonia slip from SCR or SNCR to impact the salability and disposal of fly ash, as well as to create a visible stack plume. The potential for transportation and storage of ammonia to result in an accidental release was also identified as a potential non-air quality impact. Nevada Energy cited these as negative impacts in its consideration of SCR and SNCR control options. In preparing the RH SIP, NDEP did not further expand on these impacts in determining ROFA with Rotamix as BART for NO
Although our analysis supports NDEP's decision to not require control technology options more stringent than ROFA with Rotamix (or SNCR with LNB and OFA achieving the same emissions
In order to meet the terms of our consent decree, it is necessary for EPA to propose action on Nevada's RH SIP at this time. As a result, we are proposing the promulgation of a FIP that will address the elements described below. We expect these elements to match the content of the revised RH SIP that Nevada has indicated it intends to submit.
Based upon the March 22, 2012 letter sent by NDEP indicating its intent to submit a revised RH SIP, we do not expect to receive the revised RH SIP prior to our consent decree deadline for final action on this proposal. Although we will not receive the revised RH SIP prior to our final action, we do intend to act expeditiously on the revised RH SIP once it is submitted to EPA.
We are proposing to promulgate a FIP to establish a NO
Nevada Energy's BART analysis for Unit 3 did not provide a unit-specific explanation for this difference in control effectiveness. In responding to comments on this issue, NDEP indicated that it deferred to Nevada Energy's operational experience in developing control efficiency data, and had no reason to question Nevada Energy's estimates.
We are proposing to promulgate a FIP to establish a 30-day rolling average, averaged across all three units, as the basis for the NO
In its RH SIP, NDEP proposed emission limits for Units 1 through 3 based upon a control technology determination of ROFA with Rotamix. In its March 22, 2012 letter, NDEP indicated that it intends to submit an RH SIP revision that will revise the control technology determination to SNCR with LNB and OFA. In addition, the corresponding BART emission limits for NO
In its RH SIP, NDEP estimated that SNCR with LNB and OFA would be capable of achieving a NO
With the exception of the NO
NDEP, however, failed to support applying a higher emission limit for Unit 3 and failed to provide a sufficient basis for approving the emissions limit on a 12-month rolling average. Therefore, EPA is disapproving the RGGS NO
This proposed action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), and is therefore not subject to review under the Executive Order. The proposed FIP applies to only one facility and is therefore not a rule of general applicability.
This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Under the Paperwork Reduction Act, a “collection of information” is defined as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” 44 U.S.C. 3502(3)(A). Because the proposed FIP applies to just one facility, the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. The Regional Haze FIP for the single facility being proposed today does not impose any new requirements on small entities. The proposed partial approval of the SIP, if finalized, merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. See
Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more (adjusted to inflation) in any 1 year. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
Under Title II of UMRA, EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any 1 year. In addition, this proposed rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely addresses elements of the State's Regional Haze SIP that are inconsistent with the Regional Haze Rule. In addition, the State has indicated that it intends to submit a SIP revision, the contents of which are intended to match the content of the FIP proposed in this rule. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” We note that the SIP is not approved to apply in Tribal lands located in the State, will not impose substantial direct costs on tribal governments or preempt tribal law, and does not affect the distribution of power and responsibilities between the Federal Government and any Indian tribes. As a result, while this rule applies to an emissions source that is adjacent to the Moapa Reservation, it does not have direct tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). However, we acknowledge that concerns about the environmental impacts of this facility have been raised by the Moapa Tribe. We have formally consulted with the Moapa Tribe regarding those concerns, and have visited the reservation and the facility. We will continue to work with the Moapa Tribe as we proceed with our action.
Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks. However, to the extent this proposed rule will limit emissions of NO
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. We have determined that this proposed rule, if finalized, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This proposed rule limits emissions of NO
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements.
42 U.S.C. 7401
For the reasons stated in the preamble, Part 52, chapter I, title 40 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for Part 52 continues to read as follows:
42 U.S.C. 7401
2. Part 52 is amended by adding § 52.1488(e) to 52.1488 Visibility Protection, to read as follows:
(e) This paragraph (e) applies to each owner and operator of the coal-fired
(1)
(2)
(3)
(4)
(ii) If a valid NO
(iii) Upon the effective date of the unit-wide NO
(iv) Upon the completion of installation of ammonia injection on any of the three units, the owner or operator shall install, and thereafter maintain and operate, instrumentation to continuously monitor and record levels of ammonia consumption for that unit.
(5)
(ii) The owner or operator shall also notify EPA of initial start-up of any equipment for which notification was given in paragraph (e)(5)(i).
(6)
(7)
(i) For each unit, CEMS data measuring NO
(ii) Records of the relative accuracy test for NO
(iii) Records of ammonia consumption for each unit, as recorded by the instrumentation required in paragraph (e)(4)(iv) of this section.
(8)
(9)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to grant limited approval to a State Implementation Plan (SIP) revision submitted by the Pennsylvania Department of Environmental Protection (PADEP) on April 14, 2009. The revision pertains to PADEP's plan approval requirements for the construction, modification, and operation of sources, and is primarily intended to streamline the process for minor permitting actions. This action is being taken under the Clean Air Act (CAA).
Written comments must be received on or before May 14, 2012.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2009-0882 by one of the following methods:
A.
B
C.
D.
David Talley, (215) 814-2117, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On April 14, 2009, PADEP submitted revisions to its State Implementation Plan (SIP). The proposed revisions consist of amendments to the plan approval requirements for the construction, modification, reactivation, and operation of sources.
Generally speaking, anyone constructing or operating a source in Pennsylvania that emits pollutants into the air must comply with the general requirement to obtain a “plan approval” prior to construction as outlined in 25 Pa. Code 127, Subchapters A and B. These subchapters are generally considered the state's minor New Source Review (NSR) program covering minor sources as well as minor changes at major sources. Major sources are subject to the additional requirements of subchapters D Prevention Significant Deterioration (PSD) and E (nonattainment NSR). Subchapter E also includes additional provisions relating to minor changes at major sources for ozone precursors Nitrogen Oxides and Volatile Organic Compounds (NOx and VOCs). A plan approval is a permit that authorizes construction, installation, or modification of any air pollution source. In evaluating the plan approval application, PADEP checks to see that both the operation of the source and the control equipment installed to reduce air pollution meet the applicable technical and engineering requirements. The public is given an opportunity to comment on the plan approval application. In addition to being a permit to construct, the plan approval provides temporary authorization for the source to operate to assure that the equipment functions properly. This temporary authorization is known as the “shakedown” period.
The plan approval regulations that are the subject of this proposed action are codified at 25 Pa. Code 127, Subchapter B (relating to general requirements for all plan approvals). EPA last took action on these provisions on July 30, 1996. Pennsylvania adopted the amendments being proposed in this action, and published notice of final rulemaking in the
Section 127.12b(d), as approved by EPA on July 30, 1996, authorizes a temporary “shakedown” period for new and modified sources and air cleaning equipment for a period of 180 days pending issuance of a state operating permit or a Title V permit, “* * * to permit the evaluation of the air contamination aspects of the source” (see section 127.12b(d)). The regulation as currently approved in Pennsylvania's SIP also allows for limited extensions of this period, with each extension limited to 120 days. The proposed revision increases the permissible duration of the extensions to 180 days.
The proposed revisions incorporate new requirements into the Pennsylvania SIP that outline PADEP's obligations with respect to determining whether an applicant has submitted an administratively complete application, and notifying the applicant of that decision. These requirements are codified at section 127.12d(a) thru (c). Section 127.12d(a) requires PADEP to make a completeness determination and provide notice to the applicant within 30 days of receipt of the application. Section 127.12d(b) establishes guidelines for what constitutes an administratively complete application.
The public notice requirements of section 127.44 as currently approved in the Pennsylvania SIP make no distinction between major and minor permitting actions—the requirements are the same. Pennsylvania adopted the proposed revisions to the public notice requirements of section 127.44 (and 127.45, below) in an effort to streamline the process for minor permitting actions and allow PADEP to focus its limited resources on major permitting actions.
In the current SIP, section 127.44 sections (a)(1) thru (6) list the types of plan approvals for which the public notice requirements apply. These include section (a)(5): “Other sources required to obtain plan approval,” which has the effect of applying the notice requirements to all plan approval actions equally. Pennsylvania has a robust minor New Source Review (NSR) program. Very few sources escape the requirement to obtain a plan approval, and every plan approval is subject to public notice requirements. Prior to these revisions, significant time and resources were being spent on relatively minor permitting actions. The proposed revisions involve the bifurcation of the notice requirements into a new section 127.44(a) which applies to minor actions, and a new section 127.44(b) which applies to major actions as well as any action for which PADEP determines that significant public interest exists. The remaining unchanged sections were re-ordered sequentially to allow for the bifurcation.
Pursuant to the proposed amendments, under the revised section 127.44(a) PADEP will publish a “notice of receipt and intent to issue” in the
In the proposed revisions, section 127.45 was similarly bifurcated to incorporate separate requirements for minor and major actions. As with the notice requirements of section 127.44, the content requirements of section 127.45 for permitting actions considered by PADEP to be major, (now at 127.45(b)), were not substantively modified. For minor actions, section 127.45(a) outlines what must be included in each “notice of receipt and intent to issue.” These requirements include: the name and address of the applicant and the location of the source, a brief discussion of the proposed action including a description of the source, the control technology, the conditions being placed in the permit, and the type and quantity of air contaminants being emitted, as well as a point of contact at PADEP, and the statement that a person may oppose the proposed plan approval by filing a written protest with the appropriate regional office (see proposed section 127.45(a)). The requirements for minor permitting actions under this section do not vary significantly from the requirements for major actions. The primary differences are that section 127.45(b) requires a description of increment consumption (where applicable), and a description of the procedures for reaching a final decision on the proposed plan approval, including the end date for receipt of written protests, procedures for requesting a hearing, and other procedures for public involvement in the final decision (see proposed section 127.45(b)(6)). The result of the proposed revisions to sections 127.44 and 127.45 is that for minor permitting actions, public notice of the proposed action will be less detailed than for major actions, will be provided once, and only in the
The Federal requirements with regard to public availability of information are codified at 40 CFR 51.161. Specifically, 40 CFR 51.161(a) requires that “[t]he public information must include the agency's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval.” EPA believes that to some extent, the intent of section 51.161(a) was met in sections 127.45(a)(3) and (4) of Pennsylvania's proposed SIP revision, which discuss the content of the public notice. These sections require a description of the proposed construction or modification, the control technology being installed, the conditions in the proposed permit (with reference to applicable federal requirements), and the type and quantity of air contaminants being emitted. Nevertheless, the agency analysis required by 40 CFR 51.161(a) is not explicitly required in the proposed SIP revision, nor do the regulations of sections 127.44 and 127.45 require that the agency's analysis be made available for public inspection in at least one location, in accordance with 40 CFR 51.161(b)(1). Section 127.44(f)(1) requires only that the application be made available. Therefore, EPA is proposing to grant limited approval to PADEP's proposed revision. To receive full approval, PADEP must adopt the explicit requirement that the agency's analysis be included in the information provided to the public for comment pursuant to 40 CFR 51.161(a), as well as the requirement that the analysis be made available for public inspection pursuant to 40 CFR 51.161(b)(1), and submit those changes to EPA as a formal SIP revision.
The regulations at section 127.48 contain the requirements regarding public hearings or fact finding conferences on proposed plan approvals. The PADEP may, at its discretion, hold such a hearing when it is deemed necessary due to sufficient public impact or interest. The proposed amendments to section 127.48(b) include some clarifying language regarding hearing notices. More substantively, the amendments include the requirement to publish notice “* * * in a newspaper of general circulation in the county in which the source is to be located * * *”. The current SIP only requires that the notice be published in the
EPA's review of this material indicates that with the one noted
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).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the State of Arizona to address the requirements regarding air pollution emergency episodes in Clean Air Act (CAA or Act) section 110(a)(2)(G). Section 110(a)(2)(G) of the Act requires that each SIP provide for authority comparable to that in section 303 of the Act and adequate contingency plans to implement such authority. EPA is proposing to approve Arizona's SIP revision as meeting the authority and contingency plans for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS or standards).
Written comments must be received on or before May 14, 2012.
Submit your comments, identified by Docket ID Number EPA-R09-OAR-2012-0244, by one of the following methods:
1.
2.
3.
4.
Jeffrey Buss, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 947-4152,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
On July 18, 1997, EPA promulgated revised primary and secondary NAAQS for ozone which set the acceptable level of ozone in the ambient air at 0.08 parts per million (ppm), averaged over an 8-hour period. 62 FR 38856; 40 CFR 50.10. This proposed action is in response to the promulgation of these ozone standards.
Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within three years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that these SIPs must address, as applicable, including section 110(a)(2)(G) regarding authority to address air pollution emergency episodes and adequate contingency plans to implement such authority (Emergency Episode Plans). EPA last approved an Emergency Episode Plan requirement into the Arizona SIP on September 28, 1982 (47 FR 42572).
On October 2, 2007, EPA issued a guidance memorandum that provides recommendations to states for making submissions to meet, among other things, the requirements of section 110(a)(2)(G) for the 1997 8-Hour ozone standards.
This proposed action addresses only Arizona's submittal to satisfy the Emergency Episode Plan requirements of CAA section 110(a)(2)(G) and does not apply to the remaining “infrastructure” SIP elements of CAA section 110(a)(2) for the 1997 8-hour ozone NAAQS. We intend to evaluate and act upon Arizona's SIP submittal addressing these additional requirements of CAA section 110(a)(2) for the 1997 8-hour ozone NAAQS in separate actions.
CAA sections 110(a)(1) and (2) and section 110(l) require that each revision to a SIP be adopted by the state after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, of a public hearing on the proposed revisions, a public comment period of at least 30 days, and an opportunity for a public hearing.
On August 15, 1994, the Arizona Department of Environmental Quality (ADEQ) submitted section 220 of Chapter 2, Title 18 of the Arizona Administrative Code (R18-2-220), “Air pollution emergency episodes” (hereafter referred to as “Arizona Emergency Episode Plan”) to EPA for approval as part of the Arizona SIP.
Section 110(a)(2)(G) of the CAA requires that each SIP provide for authority comparable to that in CAA section 303 (“Emergency Powers”) and adequate contingency plans to implement such authority. EPA's implementing regulations in 40 CFR part 51, subpart H (“Prevention of Air Pollution Emergency Episodes”), establish a “priority” classification system under which each region in a state is classified separately for each of the following criteria pollutants, based on ambient concentrations of the pollutant: sulfur dioxide (SO
EPA's 2007 Guidance addressed, among other things, the CAA section 110(a)(2)(G) requirements for the 1997 8-hour ozone NAAQS. The 2007 Guidance stated that the SHL for the 1997 8-hour ozone NAAQS would remain unchanged as 0.60 ppm over a 2-hour average, as indicated in 40 CFR section 51.151, and that the existing ozone-related provisions of 40 CFR part 51, subpart H remained appropriate for purposes of implementing the 1997 8-hour ozone standard.
Section 110(l) of the Act prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the Act. Section 193 of the Act prohibits the modification, in a nonattainment area, of any SIP-approved control requirement in effect before November 15, 1990, unless the modification “insures equivalent or greater emissions reductions of such air pollutant.”
The Arizona Emergency Episode Plan is substantively identical to the CAA section 110(a)(2)(G) rule currently approved into Arizona's SIP (R9-3-219, “Air pollution emergency episodes”), which EPA approved in 1982 (47 FR 42572, September 28, 1982), with one exception which makes it more stringent than the SIP program. We propose to determine that our approval of this submittal would comply with CAA section 110(l), because the proposed SIP revision would not interfere with the ongoing process for
Under section 110(k) of the Clean Air Act, EPA is proposing to approve the SIP revision submitted by ADEQ on August 15, 1994, as meeting all applicable requirements of the CAA and EPA's regulations for the 1997 8-hour ozone NAAQS.
EPA is soliciting public comments on this proposal and will accept comments until the date noted in the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely 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 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).
Air pollution control, Environmental protection, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to partially approve and partially disapprove a State Implementation Plan (SIP) revision submitted by the State of Hawaii pursuant to the requirements of Section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air quality standards (NAAQS) and the 1997 and 2006 NAAQS for fine particulate matter (PM
Written comments must be received on or before May 14, 2012.
Submit your comments, identified by Docket ID Number EPA-R09-OAR-2012-0228, by one of the following methods:
1.
2.
3.
4.
Dawn Richmond, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3207,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
Section 110(a)(1) of the CAA requires states to make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” that provides for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. Many of the section 110(a)(2) SIP elements relate to the general information and authorities that constitute the “infrastructure” of a state's air quality management program and SIP submittals that address these requirements are referred to as “infrastructure SIPs.” These infrastructure SIP elements include:
• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C): Program for enforcement of control measures and regulation of new stationary sources.
• Section 110(a)(2)(D)(i): Interstate pollution transport.
• Section 110(a)(2)(D)(ii): Interstate and international pollution abatement.
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.
• Section 110(a)(2)(F): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.
On July 18, 1997, EPA issued a revised NAAQS for ozone
On March 10, 2005, EPA entered into a Consent Decree with Earthjustice that obligated EPA to make official findings in accordance with section 110(k)(1) of the CAA as to whether States had made required complete SIP submissions, pursuant to sections 110(a)(1) and (2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008 for the 1997 PM
EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM
EPA intended the statements in other proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some States that might require future corrective action. EPA did not want States, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given State should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such State. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP-approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these NAAQS should not be construed as explicit or implicit reapproval of any existing provisions that relate to these four substantive issues.
Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.
Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions.
Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).
Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C,
Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these ozone and PM
On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM
On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM
EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a comprehensive review of each and every provision of an existing SIP merely for purposes of assuring that the State in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed States to focus on the requirements of section 110(a)(2)(G) for the 1997 PM
Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA.
As noted above, EPA is currently acting upon infrastructure SIPs for various states across the country. Among the elements that EPA is evaluating as part of these actions is the requirement of CAA section 110(a)(2)(E)(ii) that SIPs, “provide * * * requirements that the State comply with the requirements respecting State boards under section 128” of the CAA. In contrast with, for example, the SSM issue discussed above, section 110(a)(2)(E)(ii) unambiguously mandates that each SIP must satisfy the requirements of section 128. Accordingly, as part of our infrastructure SIP actions, EPA is reviewing SIPs in relation to the requirements of CAA section 128. In this action, EPA finds it appropriate to propose certain interpretations of section 128 and invite comment on these interpretations.
Congress added section 128 of the CAA in the 1977 amendments as the result of a conference agreement. Titled “State boards,” section 128 provides in relevant part:
(a) Not later than the date one year after August 7, 1977, each applicable implementation plan shall contain requirements that—
(1) Any board or body which approves permits or enforcement orders under [this Act] shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under [this Act], and
(2) Any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
We first note that, in the conference report, the committee stated: “It is the responsibility of each State to determine the specific requirements to meet the general requirements of [section 128].”
First, section 128 must be implemented through SIP-approved, federally enforceable provisions. Section 128 explicitly mandates that each SIP “shall contain requirements” that satisfy subsections 128(a)(1) and 128(a)(2). A mere narrative description of state statutes or rules, or of a state's current or past practice in constituting a board or body and in disclosing potential conflicts of interest, is not a requirement contained in the SIP and therefore does not satisfy the plain text of section 128.
Second, subsection 128(a)(1) applies only to states that have a board or body that is composed of multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. It does not apply in states that have no such multi-member board or body, and where instead a single head of an agency approves permits or enforcement orders under the CAA. This flows from the text of section 128 itself, for two reasons. First, as section 128(a)(1) refers to a majority of members in the plural, we think it reasonable to read section 128(a)(1) as not creating any requirements for an individual with sole authority for approving a permit or enforcement order under the CAA. Second, subsection 128(a)(2) explicitly applies to the head of an executive agency with “similar powers” to a board or body that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any reference to heads of executive agencies.
Third, subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member board or body that
Finally, a state may satisfy the requirements of section 128 by submitting for adoption into the SIP a provision of state law that closely tracks or mirrors the language of the applicable provisions of section 128. A state may do so in two ways. First, the state may adopt the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of section 128 without any additional, future SIP revisions, even if the state adds or removes authority, either at the state level or local level, to individuals or to boards or bodies to approve permits or enforcement orders under the CAA. Second, the state may modify the language of subsections 128(a)(1) (if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval authority. In this case, if the state subsequently modifies that authority, the state may have to submit a corresponding SIP revision to meet the continuing requirements of section 128. While either approach would meet the minimum requirements of section 128, we note that the statute explicitly permits states to adopt more stringent requirements, for example through providing more detailed definitions of the terms in subsections 128(a)(1) and 128(a)(2), such as those suggested in the 1978 guidance memorandum. This approach gives states flexibility in implementing section 128, while still ensuring consistency with the statute.
On December 14, 2011, the Hawaii Department of Health (HDOH) submitted revisions to the Hawaii SIP to address the infrastructure requirements of CAA section 110(a)(2) (“2011 Hawaii Infrastructure SIP”). This submittal included (1) provisions of the Hawaii Administrative Rules (HAR) to be included in the Hawaii SIP as regulatory materials; (2) provisions of the Hawaii Revised Statutes (HRS) to be included in the SIP as non-regulatory materials; and (3) an “Infrastructure SIP Certification of Adequacy.” The Certification sets forth HDOH's analysis of how the Hawaii SIP, with the submitted revisions, would satisfy the infrastructure SIP requirements of CAA section 110(a)(2) with respect to the 1997 ozone NAAQS and the 1997 and 2006 PM
On February 1, 2012, EPA's Region 9 Regional Administrator signed a proposed rule and a direct final rule to approve into the Hawaii SIP a number of the regulatory provisions that were included in the 2011 Hawaii Infrastructure SIP. On March 20, 2012, the Regional Administrator signed a proposed rule and a direct final rule to approve into the SIP the remaining regulatory provisions submitted for inclusion in the SIP. These latter rules update and replace the minor NSR rules in the existing Hawaii SIP. Pre-publication versions of these rules and the accompanying TSDs have been placed in the docket for this action.
EPA has evaluated the 2011 Hawaii Infrastructure SIP and the existing provisions of the Hawaii SIP in relation to the infrastructure SIP requirements for the relevant NAAQS. The Technical Support Document (TSD) for this action, which is available online at
Based upon this analysis, EPA proposes to approve the 2011 Hawaii Infrastructure SIP with respect to the following requirements:
• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new stationary sources (minor NSR program only).
• Section 110(a)(2)(D)(i)(I): Interstate transport (significant contribution and interference with maintenance).
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.
• Section 110(a)(2)(F): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J) (in part): Public notification.
• Section 110(a)(2)(K): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.
We are proposing to disapprove the 2011 Hawaii Infrastructure SIP with respect to the following infrastructure SIP requirements:
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new stationary sources (permit program as required in part C of title I of the Act).
• Section 110(a)(2)(D)(i)(II): Interstate transport—prevention of significant deterioration and visibility protection.
• Section 110(a)(2)(D)(ii): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(J) (in part): Consultation with government officials and PSD.
In addition, these deficiencies have previously been addressed through promulgation of a PSD FIP (43 FR 26410, June 19, 1978, as amended at 45 FR 52741, Aug. 7, 1980; 68 FR 11322, Mar. 10, 2003; 68 FR 74488, Dec. 24, 2003) and a FIP addressing RAVI (50 FR 28553, July 12, 1985, as amended at 52 FR 45137, Nov. 24, 1987). The requirement to address regional haze will be addressed through final action on a regional haze SIP and/or FIP for Hawaii, which must be signed by September 15, 2012, under the terms of a proposed consent decree.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves some state law as meeting Federal requirements and disapproves other state law because it does not meet Federal requirements; this proposed action 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 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, Oxides of nitrogen, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency.
Proposed rule; notice of intent.
The Environmental Protection Agency (EPA) Region 5 is issuing a Notice of Intent to Delete the A & F Material Reclaiming, Inc. Superfund Site (Site) located in Greenup, Illinois from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). EPA and the State of Illinois, through the Illinois Environmental Protection Agency (IEPA), have determined that all appropriate response actions under CERCLA have been completed. However, this deletion does not preclude future actions under Superfund.
Comments must be received by May 14, 2012.
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1983-0002, by one of the following methods:
•
•
•
•
•
All documents in the docket are listed in the
• U.S. Environmental Protection Agency—Region 5, 77 West Jackson Boulevard, Chicago, IL 60604, Phone: (312) 353-1063, Hours: Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.
• Greenup City Clerk's Office, Greenup Municipal Building, 115 Cumberland Avenue, Greenup, IL 62424, Phone: (217) 923-3401, Hours: Monday through Friday, 7:30 a.m. to 4:30 p.m.
Gladys Beard, NPL Deletion Process Manager, U.S. Environmental Protection Agency (SR-6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 886-7253, or
In the “Rules and Regulations” section of today's
For additional information, see the direct final Notice of Deletion which is located in the “Rules and Regulations” section of this
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, and Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Fish and Wildlife Service, Interior.
Notice of petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list either the Eastern population or the Southern Rocky Mountain (SRM) population of the boreal toad (
To allow us adequate time to conduct this review, we request that we receive information on or before June 11, 2012. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see
You may submit information by one of the following methods:
(1)
(2)
We will not accept e-mail or faxes. We will post all information we receive on
Western Colorado Supervisor, Western Colorado Ecological Services Office, Grand Junction, CO; by telephone at 970-243-2778; or by facsimile at 970-245-6933. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.
When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the Eastern population of the boreal toad from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
If, after the status review, we determine that listing the Eastern population of the boreal toad is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:
(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;
(2) Where these features are currently found;
(3) Whether any of these features may require special management considerations or protection;
(4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species”; and
(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your information concerning this status review by one of the methods listed in the
Information and supporting documentation that we received and used in preparing this finding is available for you to review at
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.
On May 25, 2011, we received a petition of the same date from the Center for Biological Diversity, the Center for Native Ecosystems, and the Biodiversity Conservation Alliance, requesting that either the Eastern or SRM population of the boreal toad be listed as an endangered or threatened DPS and that critical habitat be designated under the Act. The petitioners also requested that if boreal toads in either the Eastern or SRM population are designated as separate species during consideration of the petition (based on recent and ongoing genetic studies) that both species be listed under the Act. We note the request to list either population as a DPS, or, if the two populations are
The petitioners included the requisite information in the petition, as required at 50 CFR 424.14(a). In a June 23, 2011, letter to the petitioners, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species as endangered under section 4(b)(7) of the Act was not warranted. We also stated that we would initiate response to the petition in Fiscal Year 2011 and would finalize a response in Fiscal Year 2012 (approximately March 2012). This finding addresses the petition.
On September 30, 1993, the Service received a petition from the Biodiversity Legal Foundation of Boulder, Colorado, and Dr. Peter Hovingh, a researcher at the University of Utah, Salt Lake City, Utah. The petitioners requested that the Service list the SRM population of the “western boreal toad” (a common name sometimes used in the past for
On March 23, 1995, the Service announced a 12-month finding that listing the SRM population of the boreal toad as an endangered DPS was warranted but precluded by other higher priority actions (60 FR 15281). At that time, a listing priority number of 3 was assigned. When we find that a species is warranted but precluded for listing, we refer to it as a candidate species. Section 4(b)(3)(B) of the Act directs that when we make a “warranted but precluded” finding on a petition, we are to treat the petition as being one that is resubmitted annually on the date of the finding; thus, the Act requires us to reassess the petitioned actions and to publish a finding on the resubmitted petition on an annual basis. Several resubmitted candidate assessments for the boreal toad were completed. The most recent assessment was published in the
On October 7, 2002, as part of an agreement regarding multiple species, the U.S. Department of the Interior reached an out-of-court settlement with several conservation organizations and agreed to make a final determination for listing the SRM population of the boreal toad by no later than September 30, 2005. In the 2005 Annual Notice of Findings on Resubmitted Petitions, we noted that a determination for the boreal toad would be funded in Fiscal Year 2005 (70 FR 24870). On September 29, 2005, we reached a determination in the revised 12-month Finding that the SRM population of the boreal toad did not warrant listing because it was not a listable entity according to the DPS criteria and, therefore, should be withdrawn from the candidate list (70 FR 56880). When the boreal toad was put on the candidate list in 1995, the DPS policy did not yet exist, so current criteria were not used to determine whether the toad was a listable entity. The combination of using the DPS criteria developed in1996 and genetic and other information available during development of the 2005 finding led to determinations that the SRM population of the boreal toad was discrete based on DPS discreteness criteria but was not significant based on DPS significance criteria. Therefore, it was not considered a listable entity.
On September 2, 2008, we received a notice of intent to sue from the Center for Biological Diversity (dated August 28, 2008) for violations of the Act (i.e., failure to issue a proposed rule in 2005 or subsequently list the toad), but a lawsuit never followed.
The
Two subspecies of the boreal toad have been recognized for many years, the boreal toad (
Two different studies analyzing mitochondrial DNA (mtDNA) from boreal toads and other closely related species and subspecies conclude that toads within the SRM population (southeastern Wyoming, Colorado, and New Mexico) and southwestern Wyoming, southeastern Idaho, northeastern Nevada, and Utah form a population of genetically similar toads termed the Eastern Major Clade (Goebel
The Northwest Major Clade extends from western Wyoming and northwestern Utah over to west-central California and up to southeastern Alaska, including ranges of both the boreal toad and the California toad (Goebel
As illustrated in the map in this notice, the combination of the outermost extent of both 2009 genetic articles' clade boundaries primarily form the boundaries of the Eastern population. Two exceptions occur in west-central Utah and eastern Nevada, where the Eastern population boundary extends beyond the clade boundaries (see map). The petitioners based the Eastern population boundaries on gross range maps drawn by the International Union for Conservation of Nature, creating the two exceptions. Reduction in size of the Eastern population from clade boundaries also occurs in Arizona, northwestern New Mexico, and the other States, based on lack of habitat and no records of boreal toads ever occurring in the excluded areas (see map).
Portions of Goebel
Boreal toads may reach a length (snout to vent) of 12.7 centimeters (5 inches) (Hammerson 1999, p. 90; Stebbins 2003, p. 208). They possess warty skin, oval parotoid glands, and often have a distinctive light mid-dorsal stripe. During the breeding season, males develop a dark patch on the inner surface of the innermost digit. Unlike many other toad species, the boreal toad has no vocal sac and, therefore, produces no mating call (Hammerson 1999, p. 90). Tadpoles are black or dark brown.
Boreal toads in the SRM population typically occupy habitat at elevations between 2,440 meters (m) (8,000 feet (ft)) and 3,350 m (11,000 ft) (Loeffler 2001, p. 6). However, within the Eastern population, they have been recorded as low as 1,570 m (5,150 ft) and as high as 3,661 m (12,000 ft) (Livo and Yeakley 1997, p. 143; Thompson
Boreal toads have been observed to lay up to 16,500 eggs (Campbell 1970a, p. 24), and, in Colorado they have been observed laying up to 10,900 eggs (Hammerson 1999, p. 96), with an overall mean clutch size of 6,661 eggs (Carey
After mating, adults often disperse to upland, terrestrial habitats, where they are mostly active during the day in early and late summer (Mullally 1958, entire; Campbell 1970a, pp. 84-86; Carey 1978, pp. 203, 206, 211), foraging primarily on ants, beetles, spiders, and other invertebrates (Schonberger 1945, p. 121; Campbell 1970a, p. 69-71). Late in the summer the toads will expand their home ranges, generally in the direction of wintering habitats, which include cavities among streamside boulders, ground squirrel burrows, and beaver lodges and dams (Campbell 1970a, pp. 50, 87; Hammerson 1999, p. 94).
Survival of embryos from laying to hatching is normally high, but catastrophic mortality has been observed (Blaustein and Olson 1991, entire). Survival of tadpoles and juveniles is low, with predation and adverse environmental conditions primarily responsible for mortality at these life stages (Campbell 1970a, p. 61). Between 95 and 99 percent of juveniles die before reaching their second year of life (Samollow 1980, p. 33). The minimum age of breeding boreal toads is about 4 years in males and 6 years in females (Hammerson 1999, p. 97). Females may skip 1 to 3 years between breeding attempts, and individuals may live approximately 11 or 12 years (Olson 1991, pp. 7, 14).
The range of the boreal toad subspecies (
The range of the SRM population includes southeastern Wyoming through the mountainous region of central to west-central Colorado, and into extreme north-central New Mexico. The range of the Eastern population encompasses the SRM population and also includes southwestern Wyoming, southeastern Idaho, northeastern Nevada, and Utah (Goebel
In southeastern Wyoming, the boreal toad was once widespread and numerous in the Medicine Bow, Pole, Snowy, and Sierra Madre Mountain Ranges (Baxter and Stone 1985, p. 31; Keinath and Bennett 2000, p. 4). Declines in populations were documented in southeastern Wyoming from 1986 through 1988 (Corn
In Colorado, the boreal toad was historically known to occur in 25 counties, and was common throughout the higher elevations (Burger and Bragg 1947, pp. 61-62; Smith
The boreal toad was known to occur in three Rio Arriba County, New Mexico, localities: Lagunitas, Canjilon, and Trout Lakes (Campbell and Degenhardt 1971, entire; Jones 1978, p. 3; New Mexico Department of Game and Fish (NMDGF) 1988, p. 1; Degenhardt
In summary, based on currently available data, the distribution and abundance of boreal toads in the SRM population appears to be declining.
Relatively recent records (1993-2003) and historical records (pre-1993) of boreal toad locations were compiled for southwestern Wyoming (McGee and Keinath 2004, pp. 65-66). Historically, boreal toads occurred in Uinta and Lincoln Counties in the southwestern corner and west-central edge of Wyoming. One (nonbreeding) record from far eastern Lincoln County was recorded in the 1993-2003 time period. Other recent records in the region are from Sublette County bordering the eastern side of Lincoln County. Juvenile or recently metamorphosed toads and tadpoles were collected in Sublette County, Wyoming, for genetic analysis. The most southerly of the three toad samples was grouped with the Eastern population by Goebel (2003, p. 7). We do not have more recent distribution or status information in our files for southwestern Wyoming.
Two genetic sample sites in southeastern Idaho occur within the Eastern population (Switzer
One boreal toad genetic sample has been collected in northeastern Nevada (Goebel
The petition states that boreal toads are largely distributed throughout most of their historical range in Utah, which includes northern and central Utah (referencing Thompson
In summary, based on currently available data, the number of viable populations appears stable in Utah, but little information exists to evaluate the current distribution or trend in abundance in the Eastern population outside of the boundaries of the SRM population.
Under section 3(16) of the Act, we may consider for listing any species, including subspecies, of fish, wildlife, or plants, or any DPS of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Such entities are considered eligible for listing under the Act (and, therefore, are referred to as listable entities) if we determine that they meet the definition of an endangered or threatened species. The petitioners have requested that either the SRM population of the boreal toad or the Eastern population of the boreal toad be considered a DPS and listed as endangered or threatened under the Act.
In determining whether an entity constitutes a DPS, and is therefore listable under the Act, we follow the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (DPS Policy) (61 FR 4722; February 7, 1996). Under our DPS Policy, we analyze three elements prior to listing a possible DPS: (1) The discreteness of the population segment in relation to the remainder of the taxon; (2) the significance of the population segment to the taxon to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing (e.g., is the population segment, when treated as if it were a species, endangered or threatened?) (61 FR 4722). This finding considers whether the petitioned SRM population or Eastern population of the boreal toad may be a DPS.
Under our DPS Policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist (61 FR 4722).
Under our DPS Policy, in addition to our consideration that a population segment is discrete, we consider its biological and ecological significance to the taxon to which it belongs. This consideration may include, but is not limited to, the following:
(1) Evidence of the persistence of the discrete population segment in an ecological setting that is unusual or unique for the taxon;
(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;
(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or
(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics (61 FR 4722).
The petition cites two genetic studies (Goebel
The petition states that both the Eastern population and SRM population occur in an unusual or unique ecological setting. The petition also states that a significant gap in the range could occur if boreal toads are extirpated from either the Eastern population (a 20 percent (or 161,422 square miles) loss of the species' range in the conterminous United States) or SRM population (a 5 percent (or 38,894 square miles) loss of the species' range in the conterminous United States). Furthermore, the petition states that the Eastern population is significant based on Goebel
Based on evidence of feasible dispersal distances, the SRM population is likely geographically (physically) separated from other populations of the boreal toad, including the western portion of the Eastern population (Keinath and McGee 2005, p. 16, fig. 7 and pp. 26-27) (see the map in this notice). The greatest recorded distance of movement for a boreal toad in the southern Rocky Mountains is 8 kilometers (km) (5 miles (mi)) (Lambert 2003, p. 88). The map in this notice illustrates the gross range of the western part of the Eastern population and the SRM population. We used complete hydrologic units to develop the eastern boundary of the western part of the Eastern population. The petition maps did not use complete hydrologic units, particularly in northeastern Utah, but rather cut them off at State boundaries. The Red Desert separates these two portions of the Eastern population in Wyoming by about 126 km (78 mi), and arid habitat in western Colorado and eastern Utah create separation of at least 84 km (52 mi). However, boreal toads are not known to actually occupy the outer extent (lower elevations) of the gross hydrologic units in the map in this notice. Maps in the petition can be referred to in order to see hydrologic units known to be occupied by boreal toads (Greenwald
Mitochondrial DNA analysis indicates that the SRM population is part of a more widespread evolutionary lineage that includes boreal toad populations from Utah, northeastern Nevada, southeastern Idaho, and southwestern Wyoming (Goebel
Nonetheless, based on its current geographic separation from other boreal toad populations, we believe there is substantial information to indicate that the SRM population may meet the DPS Policy definition of discreteness.
As referenced above, two different studies analyzing mtDNA from boreal toads and other closely related species and subspecies conclude that toads within the SRM population and southwestern Wyoming, southeastern Idaho, northeastern Nevada, and Utah form a population of genetically similar toads termed the Eastern Major Clade (Goebel
Through mtDNA analysis, Goebel (2003, pp. 8-9) found greater differences between boreal toads in the Eastern Major Clade versus the Northwest Major Clade than mtDNA differences found between the Canadian toad (
The petition states that the Snake River Plain in Idaho geographically separates the boreal toad populations. Boreal toads might not cross the Snake River Plain itself; however, based on genetic samples, it does not appear that the Plain is a genetic barrier (Switzer
The petition also states that gene flow may occur to the west of the northeastern Nevada site where samples were obtained by Goebel
Based on genetic data, there appears to be a continuum of boreal toad distribution from southeastern Idaho into western Wyoming and all the way to Alaska, as well as a continuum from northwestern Utah, northern Nevada, southwestern Idaho, and eastern Oregon all the way to Alaska (Goebel
The petition asserts that boreal toads in the SRM population could be significant based on unusual or unique ecological settings as described in a map of ecoregions (areas with common vegetation, soils, geology, precipitation levels, hydrology, etc.) (U.S. Environmental Protection Agency (EPA) 2011, entire). The petitioners assert that ecoregions in the SRM population are distinct from ecoregions in the Eastern population, as well as distinct from
The petition referenced a study that indicates that boreal toads may occur at lower elevations in Utah than in the SRM population (Hogrefe
The petition states the SRM population constitutes about 5 percent (or 38,894 square miles) of the range in the conterminous United States and that its loss could pose a significant gap in the range of the boreal toad. This loss, which would occur at the southeastern edge of the range, would create a gap in the range of the boreal toad in the conterminous United States. However, we do not believe this gap would be significant, due to the combination of the area being on the edge of the range and covering a relatively small area. We do not believe there is substantial information that the loss of SRM would be significant to the taxon.
The petition suggests that boreal toads in the SRM population are significant under the DPS Policy because they comprise more diversity than currently recognized species, such as in the Canadian toad and American toad example used above by Goebel
The petition asserts that boreal toads in the Eastern population could be significant based on unusual or unique ecological settings as described in a map of ecoregions (EPA 2011, entire). They assert that ecoregions in the Eastern population are distinct from other ecoregions outside of the Eastern population. For the purposes of determining significance in a DPS analysis, we look at whether the settings occupied in the area under consideration are unique or unusual to the taxon in question, not whether the setting is unique from other settings. We do not agree with the petition's assertion that ecoregions in the Eastern population are unique. Some areas within the range of the taxon may in fact be unique because of elevation, precipitation levels, and vegetative characteristics. However, we find that many of the ecoregions, and areas actually occupied by the boreal toad within the range of the taxon, are similar enough that the Eastern population cannot be characterized as unusual or unique (i.e., they occupy relatively high elevation, moist, subalpine, or boreal forest habitat). Consequently, there is not substantial evidence in the petition or in our files to support unusual or unique ecological settings as a significant factor in differentiating the Eastern population from other areas throughout the range of the boreal toad taxon.
The petition states the Eastern population (which includes the SRM population) constitutes approximately 20 percent of the subspecies' range in the conterminous United States and that this should be considered a significant gap in the range should boreal toads in the Eastern population become extirpated. Based on a review of the information in the petition and available in our files, there appears to be sufficient information to indicate that there may be a significant gap in the range of the species if the Eastern population were lost. We will further investigate this in our 12-month status review.
For the Eastern population, two studies suggest through mtDNA analysis that the combination of the clades that make up the Eastern population of the boreal toad could be considered a separate species or subspecies. These hypotheses are based on different haplotypes between the clades that make up the Eastern population (Eastern Major and Clade 3-1) and the clades to its north (Northwest Major and Clade 3-2) (Goebel
For the reasons described above, we determine that there is not substantial information in the petition and in our files to suggest that the SRM population of boreal toads may be a valid listable entity (DPS). Although this population appears geographically discrete, we did
Based on current knowledge from genetic studies and distribution information, there appears to be some genetic and geographic overlap of the Eastern population with populations of boreal toads to the north of the Eastern population. However, some genetic and geographic overlap is allowed by the DPS Policy, and we have determined that the extent of this overlap may be within the bounds of the DPS Policy. Therefore, considering information in the petition and readily available in our files, we find there is substantial information that the Eastern population of boreal toads may be a valid DPS based on sufficient genetic and geographic discreteness from the other boreal toad populations, and based on evidence of significance, including the significant gap in the range of the boreal toad that would be created if the Eastern population should become extirpated. In addition, marked (significant) genetic haplotype differences between the Eastern population and other populations of boreal toads to the north also support our determination that there is substantial information that the Eastern population may be a valid listable entity (DPS). We will further analyze the validity of this potential DPS with respect to our DPS policy during the 12-month finding.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.
In making this 90-day finding, we evaluated whether information regarding threats to the Eastern population of the boreal toad, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The petition states that water management, roads, livestock grazing, recreation, timber harvest, residential and commercial development, pollutants, and energy and minerals management are all activities that destroy, modify, or curtail the boreal toad's habitat or range. The petitioners believe that any of these activities could contribute to the decline of the boreal toad.
Water Management—The petition cites several studies to show that water management can lead to direct habitat loss, habitat fragmentation, and detrimental alteration of natural hydrological regimes, through a number of activities, including draining or filling of wetlands, water diversion for municipal or agricultural purposes, dam and reservoir construction, dewatering of habitats, bank stabilization, and stream channelization (Loeffler 2001, p. 12 ; McGee and Keinath 2004, p. 37; Hogrefe
Roads—The petition states that roads cause habitat fragmentation, prevent migration, cause mortality, and alter water flow that sustains aquatic habitats (Lehtinen
Livestock Grazing—The petition states that livestock trample boreal toads and their habitat. Trampling of habitat could cause further mortality to boreal toads from loss of vegetative cover resulting in desiccation (Bartelt 2000, pp. 98; Hogrefe
Recreation—Recreation is cited in the petition as impacting amphibians through loss of eggs, tadpoles, metamorphs, and adults due to trampling, vehicle impacts, habitat degradation, an increase in predators attracted to human refuse, and transfer of pathogens between boreal toad populations (Hogrefe
Timber Harvest—The petition states timber harvest may cause (1) mortality through crushing by equipment, (2) interruption of dispersal from breeding sites, or of late-summer dispersal of adults into uplands, (3) soil compaction that limits the availability of burrows used for overwintering hibernacula, (4) a reduction of available refugia through burning of slash piles and downed woody materials, (5) sedimentation that could disturb habitat, and (6) the spread of nuisance species. The petition states that any timber harvest activity that affects wetlands could have negative impacts to the boreal toad (Loeffler 1998, pp. 56-57; Bartelt 2000, pp. 20-27, 74-77; McGee and Keinath 2004, pp. 32-33). However, only one of the references available to us on this topic was specific to the species, showing that effects to boreal toads from interruption of dispersal by timber harvest have been documented (Bartelt 2000, pp. 20-27, 74-77).
Residential and Commercial Development—The petition states that residential and commercial development have potentially caused extirpation of boreal toads in several areas in Utah and Colorado (Thompson
Pollutants—The petition states that pollutants including herbicides, insecticides, and piscicides are harmful to amphibians (Loeffler 2001, p. 13; Hayes
Energy and Minerals Management—The petition states that energy and minerals management causes habitat loss and fragmentation from new roads, well pads, pumps and other facilities, and utility lines, and an increase in human presence from vehicle traffic and construction activity (U.S. Bureau of Land Management (BLM) 2005, pp. 3-29).
Water Management—Alteration of natural hydrology and hydrologic processes, such as removal of water sources, shortening or lengthening water availability, and flooding large areas of habitat or dispersal corridors could cause impacts to the boreal toad (Loeffler 2001, p. 12; Hogrefe
The petition states that a substantial proportion of streams located within the range of the Eastern population of boreal toads have been impacted by disturbance, and cites a study illustrating an average 30-40 percent disturbance of stream corridor riparian areas, about 10 percent disturbance of riparian vegetation, and 10-20 percent disturbance of streambed stability by stressors in the Southern Rockies and Northern Rockies ecoregions (Stoddard 2005, p. 40, fig. 15). The stream corridor riparian area category does indicate a moderate amount of disturbance to potential boreal toad habitat loss and fragmentation. However, the number and extent of streams in this study that were occupied by boreal toads is unknown, so the extent of impact is indeterminable.
The petitioners state that wetland losses have occurred throughout Utah and are expected to continue due to human population growth (Lee 2001, p. 4). There are numerous wetlands and water sources within the range of the boreal toad that have not been impacted, but there has been alteration of riparian and wetland habitat and hydroperiods due to water development and use. We believe this issue is the most likely activity under Factor A to cause impacts to the boreal toad. However, the petition and the information in our files does not detail the extent of wetland or riparian habitat alteration as it corresponds to effects on boreal toad habitat. The petition does not provide an analysis of water management impacts to boreal toads. Consequently, we find that localized impacts from water management activities may occur, but the petition and information in our files does not present substantial scientific or commercial information indicating that water management activities are a threat for the Eastern population of the boreal toad.
Roads—Roads could cause direct mortality by vehicle strike as well as direct loss of habitat, fragmentation, sedimentation, and alteration of hydrology, and could potentially limit dispersal and gene flow (Lehtinen
Livestock Grazing—Livestock grazing can occasionally cause direct mortality to boreal toads (Bartelt and Peterson 1996, p. 14; Bartelt 2000, p. 98; Hogrefe
Recreation—Recreation from camping, hiking, biking, fishing, and off-highway vehicle use could impact boreal toad habitat and bring increased predation and the chance of pathogen introduction (Loeffler 1998, p. 51). Potential effects from these activities include transfer of disease, including Bd, into uninfected habitats, along with trampling, loss of vegetation, reduced water quality, and loss of habitat (Hogrefe
Timber Harvest—Timber harvest activities, especially clear-cuts, can have detrimental effects to the boreal toad by interrupting dispersal corridors, causing sedimentation of streams, causing impacts to wetland and riparian vegetation used by toads, and affecting habitat by prescribed burning of slash piles or downed woody material (Bartelt and Peterson 1994, pp. 18-19; Loeffler 1998, pp. 56-57; Bartelt 2000, pp. 20-27, 74-77; McGee and Keinath 2004, pp. 32-33). Timber harvest equipment can cause direct mortality and compaction of soils that reduce burrow availability for shelter or overwintering (Loeffler 1998, pp. 56-57; McGee and Keinath 2004, pp. 32-33). Although local impacts to habitat may occur from slash pile or downed woody material burning in timber harvest areas, prescribed burning or wildfires can promote longevity of wetland areas that boreal toads need by preventing build-up of vegetation and subsequent succession to other habitat types (Russell
Residential and Commercial Development—Some boreal toad habitat loss could be attributed to development on the Wasatch Front between Salt Lake City and Provo, Utah; rapid population growth in this area has likely contributed to boreal toad habitat impacts and possible extirpations (Lee 2001, p. 4; Thompson 2004, p. 257). Ski areas and associated residential development in Colorado also were identified in the petition as causing habitat loss or degradation. The petition did not cite any references on the effects of ski areas, but an article on home ranges of boreal toads documents the potential impacts of ski area development by mentioning ski area proximity and related county setbacks in Summit County, Colorado (Muths 2003, p. 163). Ski area development and associated housing have likely impacted localized areas, but boreal toads currently face little threat from residential and commercial development due to the higher elevation habitat they occupy. We find that localized impacts from residential and commercial development may occur, but the petition and information in our files do not present substantial scientific or commercial information indicating that residential or commercial development may be a threat to the Eastern population of boreal toad.
Pollutants—There are observations and studies describing potential impacts to the boreal toad from mine runoff and acidification (Porter and Hakanson 1976, pp. 327-331; Corn
Studies have illustrated the effects of pesticides and herbicides on amphibians, and deposition by drift can occur (Berrill
Energy and Minerals Management—Energy and mineral development can cause habitat loss and fragmentation from roads, utility lines, and other facilities, and can increase human presence in mining areas. As the petition points out, hardrock mines in Colorado may impact boreal toads, but boreal toads continued to inhabit the Urad/Henderson Mine in large numbers until Bd arrived there in 1999 (Loeffler 1999, pp. 31-32; Jackson 2006, pp. 27, 58-59). In fact, there is speculation that Bd-infected boreal toads at the Urad/Henderson Mine may have had better survival from the infection due to inhabiting water with mine effluent than boreal toads not inhabiting waters in the effluent area (Jackson 2006, pp. 58-59). Mining may increase human presence in boreal toad habitat and some mortality may occur from vehicles or people, but with the general decline in hardrock mining activity over the last several decades, we believe the risk of
We also are not aware that oil and gas development is a widespread activity in boreal toad habitat. In Colorado, where extensive oil and gas development has occurred, an extremely small amount of oil and gas development occurs in boreal toad habitat and the majority of boreal toad habitat is located in areas that have low to no potential for oil and gas development (Gunnison Sage-grouse Rangewide Steering Committee 2005, p. 130; Colorado Greater Sage-grouse Steering Committee 2008, p. 112). We find that localized impacts from energy and minerals management may occur, but the petition and information in our files do not present substantial scientific or commercial information indicating that energy and minerals management may be a threat to the Eastern population of the boreal toad.
Based on the information provided in the petition, as well as other information readily available in our files, we find that the petition does not present substantial scientific or commercial information indicating that the Eastern population of the boreal toad may warrant listing due to the present or threatened destruction, modification, or curtailment of the species' habitat or range. Although each of the issues evaluated under Factor A may impact the Eastern population of the boreal toad locally, the information in the petition and in our files does not indicate that these rise to the level of a threat to the population. There is no information presented in the petition or contained in our files that the threats described under Factor A cumulatively threaten the Eastern population of the boreal toad. However, we will evaluate this factor and cumulative effects of the threats described under this factor more thoroughly during the 12-month status review if we determine that a valid DPS of boreal toad exists.
The petition states there is little information on the extent of boreal toad collection or harvesting (McGee and Keinath 2004, p. 37). Some boreal toads, eggs, or tadpoles have been collected by universities, State wildlife agencies, zoos, and other institutions for propagation, translocation, genetic research or other scientific study, or educational purposes. However, information in our files shows that entities involved in these activities in the SRM population area have developed protocols to avoid or minimize mortality or injury to boreal toads (Scherff-Norris 1997, entire; Loeffler 2001, pp. 36-53). Additionally, the Utah Conservation Plan provides general procedures to minimize impact of collection activities and outlines plans for development of protocols (Hogrefe
Disease—The petition states that the chytrid fungus (Bd) is the primary pathogen of concern for the Eastern population of the boreal toad (Fellers
The petition also claims that red-leg disease (
Predation—The petition states that, despite boreal toad adults' having toxic skin secretions, boreal toads have many native predators that are suspected of depressing toad populations (Arnold and Wassersug 1978, entire; Flier
Disease—Bd was first identified in the late 1990s from a captive blue poison dart frog (
Boreal toads on the Paunsaugunt Plateau in southern Utah were reported to be infected with Bd in 2005, and chytridiomycosis is the suspected cause of boreal toad mortalities in this population (Hogrefe
In 2008, 77 Bd swabs (DNA samples taken for analysis of Bd presence or absence) were taken from boreal toads at Strawberry Reservoir in the Central Region of the Utah Division of Wildlife Resources, with 38 of those samples (49 percent) testing positive for Bd (UDWR 2010, p. II-4). In 2009, 105 toads were detected at 3 sites at Strawberry Reservoir; however, the impacts of Bd on boreal toad recent population trends
Surveyors and researchers in the SRM population collected 417 samples from 46 sites across Colorado in 2003, and subsequent analysis detected 33 toads at 8 sites with Bd (Jungwirth, 2004, p. 53). It also was discovered from the study that, at sites with Bd, adult and juvenile toads had a 77 percent prevalence rate of infection (Jungwirth 2004, p. 54). Metamorphs often do not test positive at known Bd positive sites, and it is theorized that metamorphs may not have enough exposure time to the terrestrial environment to become infected with Bd (Jungwirth 2004, p. 54). Furthermore, at toad breeding sites tested through the 2007 field season, 22 breeding sites tested positive for Bd, 35 tested negative, and 22 additional sites were not tested (Jackson 2008, p. 6).
Even though Rocky Mountain National Park (RMNP) is one of the most protected environments within Colorado, boreal toad populations have declined in the park (Corn
Bd testing has not been conducted in the remaining population in southeastern Wyoming (Jackson 2008, p. 91). However, as with the rest of the SRM population, Bd is the suspected cause of declines in southeastern Wyoming (Jackson 2008, p. 4). As stated above, boreal toads were extirpated in New Mexico for many years, but reintroduced there in 2008 and 2009. However, in 2009 seven boreal toads from the 2008 release were recaptured, but six of the seven tested positive for Bd (NMDGF 2010, p. 3). This indicates that chytridiomycosis probably extirpated them in the past, and chance of survival of reintroduced toads is low. We currently have no information on Bd occurrence in southeastern Idaho, northeastern Nevada, or southwestern Wyoming.Overall, Bd appears to be widespread, and is known to occur in the SRM and Utah.
Given its widespread distribution in the SRM area, Utah, and around the world, it is likely present in the rest of the Eastern population and is almost assuredly the primary reason for declines observed in boreal toads in the Eastern population.
The fungal disease
We also have no information in our files to suggest that the trematode
In conclusion, studies and information presented above illustrate that Bd may be the major factor in the decline of the boreal toad and that it poses a significant threat to the Eastern population of the boreal toad (Loeffler 2001, p. 13; Hogrefe
Predation—The petition and information in our files show that adult boreal toads have several avian, mammalian, and reptilian predators (Olson 1989, entire; Hammerson 1999, p. 97; Livo 1999, p. 1). Avian, reptilian, insect, and even other amphibian predators of tadpoles and newly metamorphosed boreal toads also have been recorded (Beiswenger 1981, entire; Hammerson 1999, p. 98). Both garter snakes (
Nonnative predators, such as bullfrogs or stocked trout, were asserted by the petitioners to cause impacts to the boreal toad. We do not have any information that suggests that bullfrogs prey on boreal toads, since bullfrogs have never been documented in boreal toad habitat. Trout have been stocked in many lakes in the western United States, many of which were fishless prior to stocking (Bahls 1992, p. 183). The presence of stocked trout has been found to exclude frogs from lakes in the Sierra Nevada Mountains (Bradford 1989, pp. 776-777). However, laboratory experiments have indicated that American toad (
Localized predation from native or nonnative predators may sporadically occur and could occasionally cause declines or extirpation of breeding sites or breeding populations. However, we find that the petition and information in our files does not present substantial scientific or commercial information indicating that predation may rise to the
Based on our evaluation, the petition and information in our files present substantial information that listing the Eastern population of the boreal toad due to disease may be warranted. Localized predation may cause effects to breeding sites or breeding populations, but the petition and information in our files do not present substantial information that listing the Eastern population due to predation may be warranted. However, we will evaluate this factor more thoroughly during the 12-month status review if we determine that a valid DPS of boreal toad exists.
The petition states that the boreal toad has been State-listed as endangered in Colorado and New Mexico (NMDGF 1988, p. 1; CDOW 1993, p. 2). The petition also states that the toads are designated as a State Sensitive Species in Utah. In Wyoming, the boreal toad is designated as a Native Species Status 1, which means the species and habitat are declining (McGee and Keinath 2004, p. 46). The petition states that the designations in Utah and Wyoming garner no legal or regulatory weight. The petition also states that boreal toads are designated as nongame species in Idaho, protecting them from collection. There is no designation for the boreal toad in Nevada.
The petition states that a Colorado recovery plan was completed in 1994, and a recovery plan for New Mexico was completed in 2006 (Nesler and Goettle 1994, entire; Pierce 2006, entire). The petition states that in Utah a conservation plan for the toad also has been completed (Hogrefe
The petition states that the majority of boreal toad habitat in the Southern Rocky Mountains is on U.S. Forest Service (USFS) land. The petition also points out that the USFS in both Region 2 (Colorado and southeast Wyoming) and Region 3 (New Mexico) classifies the toad as a sensitive species. However, USFS Region 4 (western Wyoming, southern Idaho, Nevada, and Utah) does not classify the toad as a sensitive species. The petition mentions that only two forests, the White River National Forest and Medicine Bow National Forest (in Colorado and Colorado/Wyoming, respectively), have forest plans that contain standards and guidelines for managing the boreal toad. However, the petition notes that the two forests only cover a small portion of the range of the toad and the forest plans do not adequately address all the threats to the toad. The petition also states that the Uintah National Forest, which covers a small area of the range of the Eastern population of the boreal toad, has a voluntary guideline to protect boreal toad habitat from disturbance (trampling) during the breeding season.
The BLM classifies the boreal toad as a sensitive species in Wyoming, Colorado, Utah, and Idaho. The petition points out that a State-led Boreal Toad Recovery Team comprised of State and Federal agencies, and an associated Technical Advisory Group comprised of university, State, Federal, and local government staff was formed and produced a conservation plan for the boreal toad in the Southern Rocky Mountains in 1998 (Loeffler 1998, entire) and revised the plan in 2001 (Loeffler 2001, entire).
The petition states that none of the State, USFS, or BLM classifications or recovery or conservation plans are adequate to protect the boreal toad, because they do not protect habitat, they carry no legal or regulatory weight, and they have not been shown to have improved the status of the toad. For example, the petition states that the Utah Conservation Plan does not address all threats to the boreal toad, such as Bd, and Bd has been detected in toads in Utah. The petitioners also considered conservation agreements, and found the specified actions to be implemented by involved parties within the SRM conservation plan were vague and provided little protection to the boreal toad. The petition states that even if all actions in the SRM conservation plan were accomplished, it still would not adequately address the impacts of Bd on boreal toads.
State listings in Colorado and New Mexico mean that possession of the boreal toads is prohibited. In Idaho, the nongame regulations prohibit possession of more than four boreal toads (Idaho Administration Procedures Act 2010, p. 4). The boreal toad was designated as a State Sensitive Species in Utah in 1997 (Hogrefe et al. 2005, p. 2). However, neither the Utah nor Wyoming sensitive species designations protect the toad from possession. Obviously, the lack of status in Nevada does not prevent possession of the toad there. However, we have no information on whether collection and possession of the boreal toad in any of the States is impacting the toad.
The Colorado Department of Parks and Wildlife (formerly Division of Wildlife), Wyoming Game and Fish, NMDGF, and UDWR have led or been instrumental in development of the State and SRM conservation plans, along with the USFS, U.S. Geological Survey, National Park Service, and BLM. Since the boreal toad was State listed in Colorado, considerable effort and funding have gone towards research, management, captive breeding, and translocation or repatriation of boreal toads in Colorado, Wyoming, and New Mexico (the SRM population). University staff, the U.S. Geological Service, zoos, and others also have been instrumental in research into declines of the boreal toad and propagation of the toad.
Despite development of the conservation plans (which are voluntary and not regulatory in nature), and the designations by different State and Federal agencies, the research and management actions that have occurred, and the standards and guidelines put into place by the USFS, there has been little success in conserving the boreal toad because of the difficulty of arresting Bd-caused declines. However, the overwhelming factor in the boreal toad's decline is chytridiomycosis caused by Bd, which will likely affect the toads regardless of what regulatory protections are in place.
Even though the Federal agencies have not addressed or implemented boreal toad management through all of their forest plans or resource management plans, they do have guidance through their sensitive species designations to manage for the toad. There have been management actions for the toad carried out on Federal lands, but the Service does not currently have information on the extent of implementation and effectiveness of these actions. The States within the Eastern population lack regulatory authority to protect the toad's habitat. However, as stated above in Factor A, we did not find substantial information to show that habitat destruction, modification, or curtailment currently threaten the toad. Consequently, there is not substantial information to indicate that regulations protecting habitat are inadequate. Similarly, issues under Factors B, C, and E do not currently appear to need further regulatory mechanisms or would not be resolved by further regulatory mechanisms. Some of the States have regulations that
Nonetheless, as both we and the petitioners recognize, Bd may be the overriding threat to the boreal toad, and we believe regulatory mechanisms are not capable or have limited capability to reduce the existing threat from Bd. Based on our evaluation, neither the petition nor information in our files presents substantial information that listing the Eastern population of boreal toad due to inadequacy of existing regulatory mechanisms may be warranted. However, we will evaluate this factor more thoroughly during the 12-month status review if we determine that a valid DPS of boreal toad exists.
Isolation—The petition states that many populations of boreal toad are small and isolated (Hogrefe
Climate Change—The petition states that since boreal toads are ectotherms (require heat from the sun or outside sources to warm selves), their body temperature varies with their surroundings. The petition states (?) boreal toad reproductive behavior and boreal toad abundance may be affected by temperature changes resulting from climate change (Blaustein and Wake 1995, pp. 2-4; Blaustein
Ultraviolet Radiation—The petition states that degradation of the ozone may be causing increases in ultraviolet-B (UV-B) radiation (Stolarski
Invasive Species—The petition discusses invasive species under Factor E, but since the discussion focuses on disease transmission and predation by invasive species, we address this under Factor C,
Isolation—Isolation or small population size could cause extirpation of boreal toad breeding colonies through habitat loss or fragmentation or other human or environmental factors (such as Bd infection), random events, or genetic problems. Microsatellite nDNA analysis suggests that populations of boreal toads within the Eastern population are isolated from one another, with little gene flow, and that this could potentially cause genetic problems (Switzer
Diseases, such as chytridiomycosis, which is caused by Bd, also could cause extirpation of these small populations. The SRM conservation plan gives a general idea of a large “population” in the viability criteria as 20 or more adult toads in a breeding “locality” (in this context “locality” is the same as a breeding population). Monitoring in Colorado and southeastern Wyoming in 2009 revealed that only 5 out of 47 breeding populations (11 percent), or 8 breeding sites out of 73 (about 9 percent), had more than 20 adults (CDOW 2010, entire). These statistics illustrate that very few populations in the SRM portion of the Eastern population are large. Consequently, we determine that the petition and information in our files present substantial scientific or commercial information indicating that isolation and small population size may be a threat to the Eastern population of the boreal toad.
Climate Change—Ray
There is a possibility that some diseases, such as chytridiomycosis, could expand their range into higher elevation boreal toad habitats if warmer temperatures occur due to climate change. However, references on this subject listed in the petition are not currently available to us and we have no information in our files to support this hypothesis. Warming temperatures could affect evaporative water loss from boreal toads, which could affect toad movement, breeding, and genetic interchange (Bartelt
Ultraviolet Radiation—The effect of increased UV-B radiation resulting from ozone depletion has been implicated as a contributing factor in amphibian declines, particularly on species inhabiting mountainous regions. However, studies are conflicting as to whether UV-B radiation has any effect on boreal toads and other frog species. A correlation was demonstrated between increased levels of UV-B and amphibian mortality in boreal toads and the Cascades frog (
Based on our evaluation, the petition and information in our files present substantial information that listing the Eastern population of the boreal toad due to isolation and small population size may be warranted. Based on our evaluation, neither the petition nor information in our files presents substantial information that listing the Eastern population of the boreal toad due to climate change or UV-B radiation may be warranted. However, we will evaluate the potential threat of climate change and UV-B radiation more thoroughly during the 12-month status review if we determine that a valid DPS of boreal toad exists.
On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition presents substantial scientific or commercial information indicating that listing the Eastern population of the boreal toad as a DPS may be warranted. This finding is based on information provided under Factors C and E.
Because we have found that the petition presents substantial information indicating that listing the Eastern population of the boreal toad as a DPS may be warranted, we are initiating a status review to determine whether listing the Eastern population of the boreal toad under the Act is warranted. During the status review, we will fully address the cumulative effects of threats discussed under each factor. Additionally, if during the status review period the Eastern population of the boreal toad is classified as its own species, the Service will determine if listing the newly classified species is warranted.
The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Colorado Field Office in Grand Junction and Lakewood, Colorado.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our August 2, 2011, proposal to list as endangered and to designate critical habitat for 23 species on the island of Oahu in the Hawaiian Islands under the Endangered Species Act of 1973, as amended (Act); designate critical habitat for 2 plant species that are already listed as endangered; and to revise critical habitat for 99 plant species that are already listed as endangered or threatened. We also announce the availability of a draft economic analysis (DEA) of the proposed designation and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated DEA, and the amended required determinations section. Comments previously submitted on this rulemaking do not need to be resubmitted, as they will be fully considered in preparation of the final rule. We are also considering revising the boundary for Oahu—Lowland Dry—Unit 8, from that described in the proposed rule, based on new information regarding the biological conditions within certain portions of the unit.
The comment period end date is May 14, 2012. We request that comments be submitted by 11:59 p.m. Eastern Time on the closing date.
You may obtain a copy of the DEA via
You may submit comments by one of the following methods:
•
•
We will post all comments on
Loyal Mehrhoff, Field Supervisor, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Box 50088, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We will accept written comments and information during this reopened comment period on our proposed listing of 23 species on Oahu and the designation of critical habitat for 124 species that was published in the
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including whether there are threats to the species from human activity, the degree to which threats from human activity can be expected to increase due to the designation, and whether that increase in threats outweighs the benefit of designation such that the designation of critical habitat may not be prudent.
(2) Specific information on:
(a) The amount and distribution of habitat for the 124 species described in the proposed rule;
(b) What areas that contain features essential to the conservation of the 124 species described in the proposed rule should be included in the designation, and why;
(c) The habitat components (primary constituent elements) essential to the conservation of the species, such as substrate, plant associations, stream characteristics, and the quantity and spatial arrangement of these features on the landscape needed to provide for the conservation of the species;
(d) What areas (if any) not occupied by the species are essential for the conservation of the species, and why; and
(e) Special management considerations or protections that the features essential to the conservation of the 124 species may require, including managing for the potential effects of climate change.
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(4) Any reasonably foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(5) Information on whether the benefit of an exclusion of any particular area outweighs the benefit of inclusion under section 4(b)(2) of the Act, after considering both the potential impacts and benefits of the proposed critical habitat designation. Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species.
(6) Information on the projected and reasonably likely impacts of climate change on the 124 species for which critical habitat is being proposed.
(7) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comment.
(8) Information on the extent to which the description of economic impacts in the DEA is reasonable and accurate.
(9) Information on the probable or reasonably foreseeable economic impacts to water users that could potentially result from the designation of critical habitat.
(10) Information on the potential cost of irrigation-related activities, as well as their timing and likely source of funding, Federal permit requirements, and the extent or scale of repairs or modifications required.
(11) Information on the planned development activities within the areas proposed as critical habitat.
(12) Information on primary constituent elements that may or may not be present in certain portions of proposed Oahu—Lowland Dry—Unit 8, as identified in Part II, Chapter 2 of the DEA (see Figure 3.3 of the DEA).
(13) Information on whether portions of proposed Oahu—Lowland Dry—Unit 8 are essential for the conservation of the species, as identified in Part II, Chapter 3 of the DEA.
(14) Information on potential future Federal actions and possible economic impacts of the proposed critical habitat designation within Oahu—Lowland Dry—Unit 8 at Kalaeloa, as identified in Part II, Chapter 3 of the DEA.
(15) Information on whether conservation measures or conservation recommendations that ensure Federal actions avoid jeopardizing the species are also adequate to avoid adversely modifying critical habitat.
If you submitted comments or information on the proposed rule during the initial comment period from August 2 to October 3, 2011 (76 FR 46362), please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during all comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the 124 species described in the August 2, 2011, proposed rule (76 FR 46362). For more information on previous Federal actions for these species, refer to the proposed designation of critical habitat published in the
On August 2, 2011, we published a proposed rule to list 23 species on Oahu as endangered and designate critical habitat for 124 species (76 FR 46362) over approximately 43,491 acres (ac) (17,603 hectares (ha)). Within that proposed rule, we announced a 60-day comment period, which closed October 3, 2011. Approximately 93 percent of the area proposed as critical habitat is already designated as critical habitat for other species, including 99 plant species for which critical habitat was designated in 2003 (68 FR 35950; June 17, 2003).
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
The August 2, 2011, proposed rule proposed to designate Oahu—Lowland Dry—Unit 8 as critical habitat for 17 endangered (or proposed endangered) plants (also see Part II, Chapter 3 of the DEA, pp. 61-64). This unit is composed of pockets of native and nonnative species. We initially determined this area to be essential for the conservation and recovery of these lowland dry plant species because we believed it provided the environmental conditions essential for each species, including the appropriate microclimatic conditions for germination and growth of the plants (e.g., light availability, soil nutrients, hydrologic regime, temperature, and space for population growth and expansion), as well as to maintain the historical geographical and ecological distribution of each species. In addition, proposed Oahu—Lowland Dry—Unit 8 provides the coral outcrop substrate that is a unique habitat requirement for
None of the endangered plants currently occur in Lowland Dry Unit 8, although both
We are considering revising the boundaries of Oahu—Lowland Dry—Unit 8 based on comments received related to the physical and biological conditions of portions of the unit, and new biological information gained from field visits to Kalaeloa indicating certain portions of this unit may not be essential to the conservation of the species in question. During our field visits, we observed that approximately 69 percent of the originally proposed unit is no longer suitable due to development and land modification activities including grading, dredging, waste/recycle pile management, compost piles, solar array installation, fill deposition, golf course development, and road construction. Under section 3(5)(A)(ii) of the Act, specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act can only be designated as critical habitat if such areas are essential for the conservation of the species. Those portions of Oahu—Lowland Dry—Unit 8 that may not be essential to the conservation of the species based on new biological information are identified below in Figure 1. We are considering removing approximately 185 ac (75 ha) from the proposed unit and designating critical habitat in the remaining approximately 107 ac (43 ha). Accordingly, we are seeking public comments regarding the removal from this unit of the areas that may not be essential for the conservation of the species.
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the 124 Oahu species
Final decisions on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a DEA concerning the proposed critical habitat designation, which is available for review and comment (see
This analysis draws heavily on economic analyses conducted for previous critical habitat designations, because there is a 93 percent overlap between the proposed designation and the prior critical habitat designations and because economic impacts, particularly to potential water resources, are similar between the proposed critical habitat and the previous designations. The DEA has been developed in two parts, because of differences in development potential based on the geographic area involved. Part I focuses on the proposed designation for 123 species on Oahu, exclusive of the Kalaeloa area. None of the proposed critical habitat units in this area contain significant residential, commercial, industrial, or agricultural development or operations, and few projects are anticipated within the proposed critical habitat units. This situation reflects that fact that most of the land is unsuitable for development, farming, or other economic activities due to the rugged mountain terrain, lack of access, remote locations, and existing land use controls that severely limit development and most other economic activities in the mountainous interior of Oahu. Part II of the DEA is focused on the City of Kapolei and the Kalaeloa area, which is west of the city of Honolulu, in the vicinity of the former Barbers Point Naval Air Station (NAS). The NAS was decommissioned in 1999, under the Base Realignment and Closure Act, and the surrounding community is in the process of developing a strategic plan for sustaining and developing the economy in this area. In May 2005, the Hawaii Community Development Authority, in response to the closure of the NAS, adopted a strategic plan that would develop Kalaeloa into a diversified economy. The City of Kapolei has also prepared an urban design plan that defines how they want to evolve as Kapolei develops into a secondary urban center to absorb future growth emanating from the City of Honolulu. The proposed critical habitat units overlap with some of the development envisioned for this area; this has been evaluated and fully considered in Part II of the DEA.
The DEA describes the economic impacts of all potential conservation efforts for these species; many of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act.
Because there is a 93-percent overlap between the critical habitat proposed on August 2, 2011, and the areas considered in the past economic analyses, and because of the similar nature of potential water resource economic impacts, this analysis draws heavily on previous economic analyses. Part I of the DEA was developed using relevant economic information from three detailed economic analyses prepared for previous proposed critical habitat rules on Oahu (Oahu elepaio, 66 FR 30372, June 6, 2001; 99 Oahu plants, 67 FR 37108, May 28, 2002; 12 picture-wing flies, 72 FR 67428, November 28, 2007). Part I of the DEA also considers relevant economic information from three economic analyses that evaluated potential impacts to water resources on other Hawaiian islands, which is an issue also being evaluated in this analysis (Newcomb's snail, 67 FR 15159, March 29, 2002; 83 Kauai and Niihau plants, 67 FR 36851, May 28, 2002; 48 species on Kauai, 73 FR 62592, October 21, 2008). Those studies present economic information and context regarding the regulatory and socio-economic baseline, against which the potential incremental impacts of the proposed designation are evaluated. For a further description of the methodology of the analysis in Part I of the DEA, see Chapter 3, “Previous Economic Analyses of Critical Habitat Designations on Oahu.”
Part I of the DEA summarizes the previously predicted economic costs of critical habitat designation on 40,446 ac (16,371 ha) that overlap with the August 2, 2011, proposed critical habitat designation, and the areas that do not overlap. The terrestrial areas being proposed as critical habitat are remote and lack development potential. In addition, approximately 93 percent of the area proposed as critical habitat completely overlaps critical habitat that is already designated. Our previous economic analyses of critical habitat designations for the Oahu elepaio and 99 Oahu plants evaluated potential economic costs over a 10-year timeframe (2002-2012), and the previous economic analysis for the Hawaiian picture-wing fly species evaluated potential economic costs over a 20-year timeframe (2008-2028). We believe these analyses are still valid within the 93-percent-overlap area, as the potential activities and conservation measures considered in those studies are similar to those that would be applicable under the current proposal. We are aware of only a small number of section 7 consultations that have been conducted within the 93-percent-overlap area, because these areas lack development potential. In addition, the physical or biological features described within the overlap areas under the existing and proposed designations are similar (e.g., 99 Oahu plants (ecosystem type, elevation (68 FR 35950; June 17, 2003)); Oahu elepaio (ecosystem type, associated native species, rainfall, elevation (66 FR 63752; December 10, 2001)); Hawaiian picture-wing flies (ecosystem type, elevation, host plants (73 FR 73794; December 4, 2008))). Therefore, we anticipate few, if any incremental costs attributable to the proposed critical habitat designation in the 93-percent-overlap area beyond those identified in the previous
Of the remaining 7 percent (2,478 ac (1,001 ha)) of proposed critical habitat that does not overlap existing critical habitat, 95 percent (2,354 ac (951 ha)) is classified as being in conservation districts, and 5 percent (124 ac (50 ha)) is within urban or agricultural districts. Figure 4 and the corresponding key in the draft economic analysis (pp. 23-25), identifies objectives for land uses within the conservation district zoning. However, 74 percent (92 ac (37 ha)) of these urban or agricultural district lands are within State forest reserves, parks, seabird sanctuaries, or natural area reserves, and are also unlikely to be developed. The remaining lands (32 ac (13 ha)) are on the Naval Radar Transmitting Facility at Lualualei (which are unlikely to be developed), or lands of unknown use. These unknown use lands are most likely roads and existing manmade structures, which do not contain the physical or biological features, or are not essential to the conservation of the species. Further, no section 7 consultations have been conducted in these areas to date. Accordingly, with the possible exception of presently unknown costs associated with the proposed damselfly critical habitat (as discussed in the next paragraph), we do not believe the proposed designation of critical habitat in the non-overlap areas would result in any appreciable economic impacts. This conclusion is based on the lack of development potential for these areas. We acknowledge there may be circumstances under which additional costs may be incurred because of the designation of critical habitat, for example, due to the nature of a particular project or because currently occupied habitat becomes unoccupied in the future. Accordingly, we are seeking information from the public on the potential costs of this critical habitat designation to ensure the final determination is based on the best available scientific and commercial information.
Our August 2, 2011, proposed rule includes the proposed listing of the blackline Hawaiian damselfly (
Most of the damselflies' proposed primary constituent elements (PCEs) are related to elevation, annual precipitation, substrate, and associated native vegetation, which are comparable to those propsoed for the Oahu plant species identified in the proposed rule. However, the damselflies' proposed PCEs also have an aquatic habitat component (
Part II of the DEA assesses the potential economic impacts associated with the proposed 566-ac (229-ha) critical habitat designation at Kalaeloa, Oahu, for 24 plant species. Only two of these plants,
Critical habitat could also trigger incremental economic impacts if an occupied area were to become unoccupied as a result of a stochastic or other catastrophic event. In this situation, a Federal agency would still have a section 7 consultation responsibility based on the critical habitat designation, even though the species is no longer present. Conservation recommendations under this scenario could target management actions to reintroduce the species into the vacated critical habitat area. However, we are unaware of any instances of this situation arising.
We received several comment letters in response to the proposed rule that published in the
Although these comments are informative from the standpoint of further understanding the ongoing and planned development activities in the area, absent a Federal nexus, the designation of critical habitat would have no direct economic impacts to those activities. We are also unaware of any indirect economic impacts that would result from critical habitat designation, absent a Federal nexus. Several of the commenters indicated they would provide additional comments related to economic impacts once the draft economic analysis for the proposed critical habitat designation became available for public review. In this regard, comments that specifically identify Federal permits, licenses, funding, or other Federal assistance that are or would be necessary for ongoing or planned development activities would be helpful. All comments received will be fully considered in the Service's final critical habitat determination.
In the absence of definitive data or other economic information, the analysis presents a range of economic effects. The lower-bound estimate of effects is that the landowners would incur no economic impact from the designation of critical habitat. The upper-bound estimate of effects is that each parcel owner would participate in section 7 consultation with the Service before initiating their action, and the Service, Federal action agency, and/or the parcel owner would incur additional costs (see DEA Table 4.3, p. 75).
Total incremental administrative costs to address critical habitat concerns in occupied critical habitat, in 2011 dollars over a 21-year timeframe, would be approximately $405 for technical assistances, $2,380 for an informal consultation, and $5,000 for a formal consultation. The potential upper-bound administrative costs to address critical habitat concerns for occupied critical habitat units assumes that every parcel within the unit would have a formal consultation because of critical habitat designation. The total annualized costs in 2011 dollars over a 21-year timeframe would be approximately $1,380 for the Service, $1,550 for the Federal action agency, $875 for the third (private or State) party receiving Federal funding or seeking a Federal permit, and $1,200 for the biological assessment.
Oahu—Lowland Dry—Unit 8 is the only unit that is not currently occupied by any of the 17 species for which it is proposed as critical habitat. Consequently, Federal agencies are not currently compelled to consult with the Service on any actions that they authorize, fund, or carry-out with regard to possible effects on the 17 plants for which critical habitat is proposed in this unit. In the future, should critical habitat be designated for this area, Federal agencies would need to consult with the Service to ensure that their actions do not adversely modify critical habitat. However, due to the infrequency of section 7 consultations with Federal agencies on private development activities, the Service is unsure how the designation of critical habitat will affect future conservation measures and associated economic impacts. This unit contains 13 separate parcels, none of which are owned by the Federal Government. Although the parcels in Oahu—Lowland Dry—Unit 8 are planned to be commercially developed, for the most part, it remains difficult for the Service to determine the likelihood that such planned activities will be subject to a consultation. The primary reason why the Service has difficulty predicting how the planned future activities will be subject to a section 7 consultation is the inability to identify a Federal nexus that would require consultation. Accordingly, we are seeking specific public comments in this regard.
Due to the uncertainty of whether or not future commercial development will be subject to a section 7 consultation, the analysis in Part II of the DEA presents a range of potential effects. The lower-bound estimate is no economic effect because future development would not be subject to a section 7 consultation. However, should future development require section 7 consultation, it would presumably be attributable to the proposed critical habitat designation. The upper-bound estimate of effects is that each parcel owner would participate in section 7 consultation with the Service before initiating their action, and the Service, Federal action agency, or the parcel owner would incur additional administrative costs. The upper-bound estimate of administrative costs to address critical habitat concerns for a single parcel in unoccupied critical habitat, annualized in 2011 dollars over a 21-year timeframe, would be approximately $5,500 for the Service, $6,200 for the Federal action agency, $3,500 for the third (private or State) party receiving Federal funding or seeking a Federal permit, and $4,800 for the biological assessment, or $20,000 total annualized costs.
With regard to possible costs for conservation measures, as discussed above, the Service cannot identify a reasonably foreseeable Federal nexus which would lead to a formal section 7 consultation, related to the types of future uses identified in the Kapolei Area Long Range Master Plan or the Kalaeloa Master Plan. Therefore, the analysis estimates the upper-bound limit of such economic impacts based on land assessments and the percentage of parcel lands proposed as critical habitat. Specifically, because the Service is unable to estimate how much of the proposed critical habitat could be disturbed as part of planned future development activities without violating the prohibition on destroying or adversely modifying critical habitat, this analysis bases its upper-bound estimate of economic impacts using the very conservative approach that the designation could effectively lead to all of the proposed areas remaining in an open, undeveloped state. Oahu—Lowland Dry—Unit 8 surrounds the Kalaeloa Barbers Point Deep Draft Harbor. This unit consists of 13 mostly undeveloped distinct parcels ranging from as little as 3 ac (1.2 ha) to over 400 ac (162 ha) in size. The Kapolei Area Long Range Master Plan generally identifies intense development for these parcels, and the County has already zoned these areas in a manner appropriate for planned future development. The total current assessment for these parcels is slightly over $206 million, which according to the Real Property Assessment Division, reflects the current market value for the properties. The analysis assumes that the designation of critical habitat could lead to a loss in land values if property owners are unable to implement their development plans. The upper-bound annualized property value impacts from critical habitat designation over a 21-year timeframe is a total of $55,806,934 for all 13 parcels in proposed Oahu—Lowland Dry—Unit 8. Since the DEA was prepared before the Service gained new biological information on the unit, the approximate $55.8 million estimate is based on the 292 acres originally proposed within the unit. As discussed above, we are considering removing 185 acres (approximately 63%) of the area originally proposed as critical habitat from this unit. A proportional adjustment to the $55.8 million upper-bound estimate would result in an estimated $20.6 million in economic costs for the 107 acres remaining in the unit, under the worst-case scenario (
Given the relatively small land area proposed for designation island-wide, coupled with the fact that the designation is generally not expected to result in any additional conservation measures for the species above and beyond the baseline (particularly in occupied critical habitat areas), this designation is not expected to significantly affect land market prices on the island even though the designation could have an effect on individual parcels. The designation of critical habitat could lead to economic costs if the designation caused either significant delays in the planned development of the land or if the designation leads to restrictions in the type of development allowed. In the first instance, a delay in planned development, which could be caused by a section 7 consultation with the Service that otherwise would not have occurred absent critical habitat, may correspond to a delay in the realization of revenue streams associated with the development (i.e., rental income) even if the consultation results in no change to the type of development initially planned. Land value losses could be greater under the second scenario if a section 7 consultation results in a change in the type of development that would have occurred absent a designation of critical habitat and associated consultation with the Service. For example, if a section 7 consultation results in less land area being developed than originally conceived and allowed under pre-existing conditions, the total value of the development and associated revenue streams may be less.
There could also be a difference between consulting on effects for some species and their critical habitat, depending on the particular circumstances of the Federal action being proposed. Some level of incremental economic impact to land values may accrue in unoccupied critical habitat areas, because they would not otherwise be subject to section 7 consultation. Critical habitat could also trigger incremental economic impacts if an occupied area were to become unoccupied as a result of a stochastic or other catastrophic event. In this situation, a Federal agency would still have a section 7 consultation responsibility based on the critical habitat designation, even though the species is no longer present. Conservation recommendations under this scenario could target management actions to reintroduce the species into the vacated critical habitat area. We are unaware of any instances of this situation arising, although there could potentially be an impact to land values if a Federal action were to be proposed in such areas.
As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of the species.
In our August 2, 2011, proposed rule (76 FR 46362), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O.
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.
According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for the 124 species included in the proposed rule (76 FR 46362, August 2, 2011) would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as commercial and residential development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where listed species are present, including the 101 Oahu plant species described in the proposed rule, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would, in most cases, be incorporated into the existing consultation process.
Our regulatory flexibility analysis considers the potential economic effects on small entities resulting from the implementation of conservation actions related to the proposed designation of critical habitat for 124 Oahu species, and looks in more detail at the proposed designation in the Kalaeola area (which is considered in Part II of the DEA), based on the potential for development in that area. As estimated in Part I, Chapter 11 of the DEA, incremental impacts of the proposed designation in Oahu with the exception of Kalaeloa would likely be limited to additional incremental costs of time spent by the Service, Federal action agency, and any third parties in section 7 consultation over and above time spent on the jeopardy analysis component of the consultation. We anticipate few, if any, incremental costs attributable to the proposed critical habitat designation where it overlaps existing critical habitat (approximately 93-percent overlap). Within this area, any conservation measures needed to protect the physical or biological features in occupied habitat areas would likely be identified during section 7 consultation based on occupancy by the species. Those measures would coincidentally benefit unoccupied habitat because those areas entirely overlap. Ninty-five percent of the non-overlap areas is classified as conservation district, and 5 percent is within urban or agricultural districts. However, 74 percent of the lands within urban or agricultural districts are within State forest reserves, parks, seabird sanctuaries, or natural area reserves, and are unlikely to be developed. Most of the remaining lands are on the Naval Radar Transmitting Facility at Lualualei (which are unlikely to be developed) or lands of unknown use (most likely roads and existing manmade structures).
Small entities may participate in section 7 consultation as a third party (the primary consulting parties being the Service and the Federal action agency); therefore, it is possible that the small entities may spend additional time considering critical habitat during section 7 consultation for the 124 Oahu species. Based on the best available information, these administrative impacts would likely be the only potential incremental impacts of critical habitat that may be borne by small entities. We do not believe the proposed designation would have a significant effect on a substantial number of small entities because none of the proposed critical habitat units contains significant residential, commercial, industrial, or agricultural development or operations, and few projects are anticipated within the proposed critical habitat. Any existing and planned projects, land uses, and activities that could affect the proposed critical habitat that have no Federal involvement would not require section 7 consultation and would not be restricted by the requirements of the Act. Finally, many of the anticipated projects and activities with Federal involvement are conservation efforts that would be expected to trigger formal section 7 consultations. If formal consultation were to be required, we anticipate that a project proponent could modify the project or take measures to protect the affected species or critical habitat, such as establishing conservation set-asides, management of competing nonnative species, restoration of degraded habitat, and regular monitoring. The Service has been involved with these types of projects for many years throughout the Hawaiian Islands. We are unaware of instances where these types of activities have resulted in any significant economic impacts to the individuals or agencies involved.
In addition, in the 2001, 2003, and 2008 economic analyses for the designation of critical habitat for the Oahu elepaio, 99 species of Oahu plants, and 12 Hawaiian picture-wing flies, respectively, we evaluated the potential economic effects on small entities resulting from the protection of these species and their habitats related to the proposed designation of critical habitat, and determined that designation would not have a significant economic impact on a substantial number of small entities. The significant overlap (93 percent) between the critical habitat designations for the Oahu elepaio, 99 Oahu plant species, and 6 Oahu picture-wing flies and this proposed critical habitat designation is further evidence that the designation of critical habitat in the areas evaluated in Part I of the DEA will not have a significant economic impact on a substantial number of small entities. None of the proposed critical habitat units considered in Part I of the economic analysis contains significant residential, commercial, industrial, or agricultural development or operations, and few projects are anticipated within the proposed critical habitat. This situation reflects the fact that most of the land is unsuitable for development, farming, or other economic activities due to the rugged mountain terrain, lack of access, and remote locations, and existing land-use controls severely limit development and most other economic activities in the mountainous interior of Oahu.
Although some existing and continuing activities involve the operation and maintenance of existing manmade features and structures in certain areas, these areas do not contain the primary constituent elements for the species, and would not be impacted by the designation. Any existing and planned projects, land uses, and activities that could affect the proposed critical habitat that have no Federal involvement would not require section 7 consultation and would not be restricted by the requirements of the Act. Finally, many of the anticipated projects and activities with Federal involvement are conservation efforts that would be expected to trigger formal section 7 consultations. If formal consultation were to be required, we anticipate that a project proponent could modify the project or take measures to protect the affected species or critical habitat, such as establishing conservation set-asides, management of competing nonnative species, restoration of degraded habitat, and regular monitoring. The Service has been involved with these types of projects for many years throughout the Hawaiian Islands. We are unaware of instances where these types of activities have resulted in any significant economic impacts to the individuals or agencies involved.
Our regulatory flexibility analysis for the Kalaeloa area contained in Part II of the DEA is based on an assessment of the highest level of incremental costs (upper-bound) of critical habitat designation due to reductions in land value due to development restrictions following the designation of critical habitat and administrative consultation costs. The analysis focuses on impacts to development activities, which may be experienced by small entities, and assumes that the designation of critical habitat would primarily impact businesses in the building construction industry. As estimated in Chapter 4 of Part II the DEA, incremental impacts of the proposed designation in occupied habitat areas would likely be limited to additional incremental costs of time spent by the Service, Federal action agency, and any third parties in section 7 consultations over and above the time spent on the jeopardy analysis component of the consultation. Small entities may participate in a section 7 consultation as a third party, and it is possible that they could spend additional time considering critical habitat during section 7 consultation for these 24 plant species. These administrative impacts would likely be the only potential incremental impacts of designating critical habitat in occupied habitat that may be borne by small entities. Critical habitat could theoretically trigger incremental economic impacts if an occupied area were to become unoccupied as a result of a stochastic or other catastrophic event. In this situation, a Federal agency would still have a section 7 consultation responsibility based on the critical habitat designation, even though the species is no longer present. Conservation recommendations under this scenario could target management actions to reintroduce the species into the vacated critical habitat area. However, we are unaware of any actual instances of this situation arising.
Based on the DEA, the only critical habitat unit facing potential property value impacts would be the unoccupied unit, Oahu—Lowland Dry—Unit 8. Property value impacts were used because we are not certain about how the designation will affect future conservation measures through the section 7 consultation process, so we used a “worst case scenario” assumption that designation could effectively lead to critical habitat remaining in an undeveloped state. However, we believe this is extremely unlikely to occur. Oahu—Lowland Dry—Unit 8 is the only proposed critical habitat unit in Kalaeloa that is not currently occupied by at least one listed species, and consequently, Federal agencies are not currently compelled to consult with the Service on actions they authorize, fund, or carry out in this unit. Although some of the parcels in Oahu—Lowland Dry—Unit 8 are planned to be commercially developed, it is difficult to determine the likelihood that planned activities would have Federal involvement, which would trigger the need for section 7 consultation. Due to this uncertainty, the DEA presents a range of possible effects. The lower-bound estimate is that there would be no economic effect because future development would not be subject to section 7 consultation. As Oahu—Lowland Dry—Unit 8 is unoccupied, any costs associated with section 7 consultation would be attributable to the proposed critical habitat designation. The upper-bound estimate assumes none of the parcels in Oahu—Lowland Dry—Unit 8 could be developed, which could lead to a property value loss. If this were to occur, potentially up to 13 small developers could be affected with an average financial impact of 2.0 percent to 2.8 percent to their annual receipts. Similarly, under the upper-bound assumption that every parcel would incur a formal consultation, the financial impact (due to administrative costs) to the average small developer would be 0.03 percent of annual receipts. Under this scenario, up to 34 small businesses could potentially be impacted, although it is unlikely that every parcel would be subject to section 7 consultation in the future. It is also unlikely that every potentially affected developer would be a small business as defined by the Small Business Administration. Accordingly, the potential economic impacts of the proposed designation on small entities are likely overstated. There is also no factual basis for the Service to conclude the designation of critical habitat would result in the inability of landowners to develop their parcels in the Kalaeloa area, based on our existing section 7 consultation history for this area.
In summary, we have considered whether the proposed designation of critical habitat for 124 species on Oahu would result in a significant economic impact on a substantial number of small entities. Information for our analysis was gathered from the Small Business Administration, stakeholders, and the
The primary authors of this notice are the staff members of the Pacific Islands Fish and Wildlife Office, Pacific Region, U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
The National Marine Fisheries Service (NMFS) proposes to amend the Bottlenose Dolphin Take Reduction Plan (BDTRP) and implementing regulations by permanently continuing medium mesh gillnet fishing restrictions in North Carolina coastal state waters, which would otherwise expire on May 26, 2012. This action will remove the expiration date to continue current nighttime fishing restrictions of medium mesh gillnets operating in North Carolina coastal state waters from November 1 through April 30. Members of the Bottlenose Dolphin Take Reduction Team (BDTRT) recommended these regulations be continued permanently, without modification, to ensure: (1) Continued conservation of strategic bottlenose dolphin stocks in North Carolina with historically high serious injury and mortality rates associated with medium mesh gillnets; and (2) BDTRP goals are met. NMFS also proposes to amend the BDTRP with updates, including updates recommended by the BDTRT for non-regulatory conservation measures.
Written comments on the proposed rule must be received no later 5 p.m. eastern time on May 14, 2012.
You may submit comments on this document, identified by NOAA-NMFS-2010-0230, by any of the following methods:
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This proposed rule, the BDTRP, 2008 BDTRP amendment, BDTRT meeting summaries with consensus recommendations, and other background documents are available at the Take Reduction Team web site:
Stacey Horstman, NMFS Southeast Region,
Section 118(f)(1) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1387(f)(1)) requires NMFS to develop and implement take reduction plans to assist in the recovery or prevent the depletion of strategic marine mammal stocks that interact with Category I and II fisheries. The MMPA includes in its definition of “strategic stock” a marine mammal stock: (1) For which the level of direct human-caused mortality exceeds the potential biological removal (PBR) level; (2) which is declining and likely to be listed as a threatened species under the Endangered Species Act (ESA); or (3) which is designated as a depleted species under the MMPA (16 U.S.C. 1362(1), (19), and (20)). PBR is the maximum number of animals, not including natural mortalities, that can be removed annually from a stock, while allowing that stock to reach or maintain its optimum sustainable population level. Category I or II fisheries are fisheries with frequent or occasional incidental mortality and serious injury of marine mammals, respectively (16 U.S.C. 1387(c)(1)(A)(i) and (ii)).
As specified in the MMPA, the short-term goal of a take reduction plan is to reduce, within six months of its implementation, the incidental mortality or serious injury of marine mammals taken in the course of commercial fishing operations to levels less than PBR for the stock (16 U.S.C. 1387(f)(2)). The long-term goal of a plan is to reduce, within 5 years of its implementation, the incidental mortality or serious injury of marine mammals taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing state or regional fishery management plans. The MMPA also requires NMFS to amend take reduction plans and implementing
On April 26, 2006, NMFS published a final rule (71 FR 24776) implementing the BDTRP, with a May 26, 2006, effective date. The BDTRP contains both regulatory and non-regulatory conservation measures to reduce serious injury and mortality of 13 strategic stocks of bottlenose dolphins (
The specific regulatory measures addressed in this proposed rule that would otherwise expire on May 26, 2012, are fishing prohibitions on nighttime medium mesh gillnets in North Carolina coastal state waters from November 1 through April 30, annually. Medium mesh gillnets are defined in the BDTRP as greater than 5-inch (12.7 cm) to less than 7-inch (17.8 cm) stretched mesh. The intent of the prohibitions is to reduce bottlenose dolphin serious injuries and mortalities by reducing gillnet soak times associated with medium mesh gillnets targeting spiny dogfish (
When the BDTRT originally deliberated on their consensus recommendations for a draft BDTRP in 2002 and 2003, they recognized the inadvertent benefit of recently implemented spiny dogfish fishery management plans (FMPs) in reducing serious injury and mortality of bottlenose dolphins by virtually eliminating spiny dogfish fishing effort in North Carolina. However, the BDTRT also recognized the dynamic nature of the spiny dogfish fishery, which is managed by both state and Federal entities. The uncertainty about on-going management of the fishery resulted in a process that was dynamic and unreliable for bottlenose dolphin conservation. Therefore, the BDTRT recommended the nighttime medium mesh prohibitions be included in the BDTRP with an expiration date to ensure regular review of the spiny dogfish fishery and management.
The nighttime medium mesh gillnet restrictions were originally implemented in the BDTRP on May 26, 2006, with an expiration date of May 26, 2009. The BDTRT subsequently recommended extending the restrictions for an additional three years to ensure continued bottlenose dolphin conservation benefits and evaluate the need for permanent restrictions due to recent changes to the spiny dogfish population status and continued uncertainty in fishery management. On December 19, 2008, NMFS published a final rule (73 FR 77531) amending the BDTRP by extending the measures' expiration date until May 26, 2012. The BDTRT met on September 9-11, 2009, and recommended NMFS make the restrictions permanent because of continued spiny dogfish FMP changes, as the spiny dogfish fishery was no longer considered overfished, and fishing effort increased for spiny dogfish in North Carolina. Removing the expiration date, thereby permanently maintaining the existing restrictions, ensures continued bottlenose dolphin conservation benefits from reduced soak durations of medium mesh gillnets in North Carolina coastal state waters.
Medium mesh gillnets fished in coastal state waters of North Carolina fall under the mid-Atlantic gillnet fishery. The mid-Atlantic gillnet fishery is classified on the MMPA List of Fisheries as a Category I fishery, which is defined as a fishery that has frequent incidental mortality and serious injury of marine mammals (i.e., greater than 50 percent of a stock's PBR level). In North Carolina, medium mesh gillnets are typically used to target spiny and smooth dogfish, king mackerel, flounder, and other shark species, with spiny dogfish as the primary target species (Rossman and Palka 2004).
Spiny dogfish are managed from Maine to North Carolina by two Federal Fishery Management Councils in Federal waters and an interstate fishery management commission in state waters. NMFS listed spiny dogfish as overfished in 1998 (63 FR 17820, April 10, 1998). In January 2000, NMFS implemented a Federal FMP (65 FR 1557) to conserve spiny dogfish in Federal waters. Among other things, the FMP implemented a coastwide commercial quota that is specified annually and split into two seasonal fishing periods (Period 1: May 1 to October 31; Period 2: November 1 to April 30). Each fishing period has separate possession trip limits, specified annually, to allow for spiny dogfish bycatch to be sold while managing catch rates (63 FR 17820, April 10, 1998; ASMFC 2007).
The Atlantic States Marine Fisheries Commission (ASMFC) issued an emergency action in 2000 requiring states to mirror Federal closures in state waters. An Interstate FMP was developed in November 2002 to manage spiny dogfish fishing in state waters and implemented in the 2003/2004 fishing year. The Interstate FMP largely mirrors the Federal FMP, setting annual commercial quotas and separate possession limits to help manage spiny dogfish catch rates for the same two fishing periods (ASMFC 2007). All commercial landings count toward the Interstate FMP quota regardless of where the fish are caught (i.e., state or Federal waters) (ASMFC 2002).
Annually, NMFS reviews the Federal FMP and ASMFC reviews the Interstate FMP, based on the most recent estimate of spiny dogfish fishing mortality and spawning stock biomass. The 2006 estimate of fishing mortality for spiny dogfish indicated the population was not overfished and overfishing was not occurring (NMFS 2006). In 2010, the spiny dogfish stock was declared rebuilt based on 2009 spawning stock biomass estimates exceeding biomass targets since 2008 (75 FR 36012, June 24, 2010; Rago and Sosebee 2010). Both state and Federal annual commercial coastwide quotas and possession limits have increased in accordance with changes in the spiny dogfish stock status (see Table 1).
The implementation of the FMPs and quota changes has affected spiny dogfish effort and landings in North Carolina since 2001 (see Figure 1). Targeting spiny dogfish in North Carolina was virtually eliminated following implementation of the FMPs, as evidenced by low spiny dogfish landings. Spiny dogfish landings in North Carolina averaged 6,609,821 pounds from 1996 to 2000 prior to the implementation of the FMPs (NMFS, Fisheries Statistic Division, pers. comm. and ASMFC 2011a). From 2001 to 2006, after implementation of the FMPs and before the spiny dogfish population was considered no longer overfished, landings in North Carolina averaged 92,243 pounds (NMFS, Fisheries Statistic Division, pers. comm. and ASMFC 2011a). Despite the increasing state quotas and possession limits through the 2008 fishing year, spiny dogfish landings in North Carolina remained comparatively low for the 2007-2008 fishing years, averaging 154,135 pounds (NMFS, Fisheries Statistic Division, pers. comm. and ASMFC 2011a).
Two major factors contributed to preventing greater increases in landings of spiny dogfish in North Carolina. First, the decreased landings of spiny dogfish in North Carolina following implementation of the FMPs were mostly due to the seasonal specifications of commercial quotas. The FMPs' commercial quotas, established annually and split semi-annually, were based on the north-south spiny dogfish migration to help maintain the seasonal and geographic distribution of landings among states. Because of the species' annual migratory pattern along the United State's east coast, quota overages often occurred in the northern states associated with harvest Period 1, resulting in reduced or restricted harvest for southern states in Period 2 (ASMFC 2002). For example, historic peak harvest for spiny dogfish in North Carolina state waters occurred during February and March, corresponding to harvest Period 2. The state and Federal quotas were often already met before harvest Period 2 because spiny dogfish remain off the coasts of the northern states until winter (ASMFC 2008). Therefore, the seasonal specifications of the FMP quotas based on the spiny dogfish migration allowed northern states to intercept spiny dogfish and meet FMP quotas before their seasonal migration south to North Carolina (NCDMF 2008). Second, following the implementation of the FMPs, the mid-Atlantic processors closed, leaving only two processors in New England (ASMFC 2002). The processing plants are at times saturated with spiny dogfish harvested from states north of North Carolina, leaving little to no market to harvest and process the fish when they arrive in North Carolina. Furthermore, in a predominantly bycatch fishery with possession limits at 600 or even 3,000 pounds, it was not cost effective for fishermen or dealers in North Carolina to truck spiny dogfish to the processors in New England given the high fuel costs and small amounts of fish allowed for harvest.
Because the semi-annual quota was not maintaining the historical distribution of landings or allowing for consistent quota allocation for southern states, ASMFC approved Addendum II and III to the Interstate FMP in October 2008 and April 2011, respectively. Addendum II was issued retroactively for the 2008/2009 fishing year, establishing regional quotas replacing the overall seasonal allocation. The quota was redistributed at 58% for the Northern Region (Maine, New Hampshire, Massachusetts, Rhode Island, and Connecticut); 26% for the Southern Region (New York, New Jersey, Delaware, Maryland, and Virginia); and 16% for North Carolina. If the quota was exceeded in a region or North Carolina, the amount exceeding the allocation was deducted from the corresponding region or North Carolina for the next fishing season. North Carolina was specifically allocated a percentage of the quota to ensure available quota when the fish arrive in North Carolina waters (ASMFC 2008). Following Addendum II, average landings for spiny dogfish in North Carolina from 2009-2010 increased to 1,562,400 pounds (NMFS, Fisheries Statistic Division, pers. comm. and ASMFC 2011a).
Addendum II addressed the inability of North Carolina to harvest spiny dogfish, but it did not allow the Southern Region to adjust possession limits based on market demand. Addendum III to the interstate FMP was, therefore, approved for the 2011/2012 fishing year, providing state-specific allocation for all states in the Southern Region and allowing individual states greater control of spiny dogfish fishing effort (ASMFC 2011b). Among other things, Addendum III divided the Southern Region annual quota of 42% into state-specific shares, including a share of 14.036% to North Carolina. Therefore, North Carolina had a state-specific quota of 2,807,200 pounds for the 2011/2012 fishing year, and the state set a maximum 3,000 pound per trip possession limit depending on fishing location.
Given the history of this fishery, continued increases in quotas and possession limits are anticipated. In October 2011, the Federal fishery management councils recommended to NMFS a 2012/2013 commercial quota of 35.7 million pounds and increased the per trip possession limit to 4,000 pounds. In November 2011, ASMFC set the 2012/2013 fishing year quota at 30 million pounds with a maximum daily possession limit of 3,000 pounds. North Carolina will receive a state-specific share of 4,210,800 pounds.
These recent increases in the quotas and possession limits resulted in increased effort in medium mesh gillnets targeting spiny dogfish, notably in North Carolina with its individual state quota. Despite increased effort and landings, medium mesh gillnet soak duration is unlikely to increase to pre-FMP durations because the possession limits are still relatively low (less than or equal to 3,000 pounds) and BDTRP nighttime medium mesh restrictions are in place. Federal fishery observer data for medium mesh gillnets targeting all species in North Carolina state waters during the winter show a marked decrease in soak durations since the spiny dogfish FMPs were implemented. Prior to implementation of the FMPs (1996-2000), soak durations ranged from less than one hour to 48 hours, averaging 9.6 hours. After the FMPs were implemented (2001-2010), soak durations ranged from less than one hour to 24 hours, averaging only 1.8 hours. Although the current average
The implementation of the spiny dogfish FMPs and subsequent effort reductions had the inadvertent but beneficial effect of reducing bottlenose dolphin serious injuries and mortalities in North Carolina; however, this trend may change as the fishery rebuilds and quotas continue to increase. From 1996 to 2000 in the North Carolina portion of the previously defined Winter-Mixed Management Unit (now corresponding to four different stocks; see the discussion in this rule under the heading,
The BDTRP winter nighttime prohibitions for medium mesh gillnets continue to be important for bottlenose dolphin conservation because they effectively limit soak times to approximately 12 hours, reducing risk of bycatch. Before implementation of the FMPs, long soak durations associated with medium mesh gillnets targeting spiny dogfish were a major contributing factor to high bottlenose dolphin bycatch rates in North Carolina. Federal observer data prior to FMP implementation document three bottlenose dolphin mortalities in medium mesh nets with soak times averaging 20 hours; only one mortality was in a net with a soak time of less than 12 hours. There have been no observed takes in medium mesh gillnets targeting spiny dogfish in North Carolina waters since 2000 when FMPs eliminated directed spiny dogfish fishing effort, and consequently, the need for long soak durations.
Stranding data also indicate the BDTRP winter nighttime medium mesh gillnet prohibitions are effective at reducing serious injury and mortality of bottlenose dolphins regardless of increases in the spiny dogfish quota. Byrd
The nighttime medium mesh gillnet restrictions were initially included in the BDTRP to ensure long soak durations of medium mesh gillnets were modified to reduce serious injury and mortality rates. These restrictions were given expiration dates on two occasions to monitor the status of the spiny dogfish fishery and management. The BDTRP prohibitions ensure reduced soak durations in medium mesh gillnets despite a recent increase in spiny dogfish fishing effort in North Carolina as shown by: (1) Reduced soak durations in medium mesh gillnets in North Carolina state waters during the winter; and (2) a continued decreasing trend of bottlenose dolphin strandings with evidence of a fishery interaction in North Carolina state waters during the winter.
Following implementation of the BDTRP in May 2006, the BDTRT met on June 19-20, 2007, to monitor the effectiveness of the BDTRP. Among other things, the BDTRT was provided updates on spiny dogfish fishery management, landings, and gear practices since the team originally deliberated on the draft BDTRP. The BDTRT recommended by consensus that the nighttime medium mesh gillnet restrictions in North Carolina be extended for an additional three years and NMFS provide an update on the status of the spiny dogfish fishery at least biennially. Therefore, per the BDTRT's recommendation, NMFS amended the BDTRP in December 2008 with a new expiration date of May 26, 2012, for the nighttime medium mesh gillnet restrictions (73 FR 77531).
NMFS held another BDTRT meeting on September 9-11, 2009, to evaluate the BDTRP and review revisions to the bottlenose dolphin stock structure. The BDTRT was provided with updates on medium mesh gillnet fishing effort targeting spiny dogfish in North Carolina and FMP management addenda and quota changes. Because of recent changes to the FMPs, the recovering spiny dogfish population, and increased fishing effort in North Carolina, the BDTRT recommended by consensus that NMFS permanently include the nighttime medium mesh gillnet prohibitions in North Carolina. The BDTRT recognized the importance of these restrictions because of the historically high rates of bottlenose dolphin serious injury and mortality
For several reasons, NMFS agrees the expiration date should be removed rather than continuing to extend the medium mesh restrictions for three-year durations. The spiny dogfish population was declared rebuilt in 2010, resulting in continued increased FMP quotas and possession limits, and landings of spiny dogfish in North Carolina. Federal fishery observer data indicate some longer soak durations commensurate with increases in quotas and possession limits. Historically, observed takes of bottlenose dolphins in North Carolina medium mesh gillnets targeting spiny dogfish were associated with longer soak durations, and 63 percent of bottlenose dolphin serious injuries and mortality were associated with medium mesh gillnets targeting spiny dogfish. Given these factors, permanently maintaining the BDTRP restrictions is necessary for meeting the goals of the plan, per the MMPA requirement to reduce serious injury and mortality of strategic bottlenose dolphin stocks in North Carolina.
This proposed rule also includes updates for non-regulatory components of the BDTRP. These updates are based on the BDTRT's consensus recommendations from their June 2007 and September 2009 meetings and do not represent a substantive change to the BDTRP requirements. The BDTRT recognized the effectiveness of the BDTRP requirements implementing non-regulatory actions, such as continued research, monitoring, enforcement of regulations, outreach, and other collaborative efforts. Non-regulatory measures are an important complement to the BDTRP's regulatory measures in achieving the plan's short-term goal and providing a framework for achieving the long-term goal.
Since the BDTRP's implementation in May 2006, NMFS convened two in-person meetings (June 2007 and September 2009) of the BDTRT to monitor and evaluate the BDTRP's effectiveness. At both meetings, the BDTRT provided NMFS with additional non-regulatory recommendations, which NMFS agrees are important to achieving the plan's goals. Some of these recommendations have already been accomplished because of the adaptive nature of the non-regulatory measures.
The following are summaries of proposed amendments to the BDTRP's non-regulatory management measures. Please see the
Based on the spatial and temporal complexity of bottlenose dolphin stocks, the BDTRT advised NMFS in both 2007 and 2009 to support continued research to improve the understanding of bottlenose dolphin stock structure. The BDTRT specifically recommended using genetics, dorsal fin photo-identification, and telemetry data for continued refinement of bottlenose dolphin stock structure, abundance estimates, and PBR levels for all stocks and especially those occupying North Carolina waters. To identify fishery-related mortalities and serious injury to stock, the BDTRT further recommended using genetic samples or matching dorsal fin images to the Mid-Atlantic Bottlenose Dolphin Photo-Identification Catalog.
Gear modification research, in cooperation with fishermen, is important to help reduce serious injury or mortality to bottlenose dolphins incidental to commercial fishing while maintaining those fisheries. Therefore, the BDTRP recommended the following: (1) Determine if pingers reduce depredation rates of bottlenose dolphins on gillnets and whether pingers affect bottlenose dolphins; (2) examine the ratio of net height versus water depth in gillnets targeting Spanish and king mackerel; and (3) continue exploring the effectiveness of modified leaders in the Virginia Pound Net fishery for maintaining catch efficiency, especially around Lynnhaven, Virginia.
During the 2009 meeting, the BDTRT recognized trap/pot gear as the main commercial fishing gear interacting with some of the estuarine stocks of bottlenose dolphins. Stranding data indicate interactions with trap/pot gear are occurring with bottlenose dolphins, and only one or two takes may result in serious injury and mortality levels that exceed PBR for these small stocks. The BDTRT provided the following recommendations to better understand the nature of interactions with trap/pot gear, inform future discussions, and reduce potential serious injuries and mortalities of bottlenose dolphins: (1) Develop state programs to remove derelict trap/pot gear; (2) characterize trap/pot gear (e.g., amount of vertical line, gear markings, etc.) interacting with bottlenose dolphins, amount of fishing effort, spatial and temporal aspects of the fisheries, and types of gear modifications (e.g., inverted bait wells); and (3) host a technology transfer workshop for fishermen using blue crab trap/pot gear to explore gear modifications that may help reduce bottlenose dolphin interactions.
Continued education and outreach to affected Category I and II fishermen and stakeholders is necessary to enhance compliance with, and therefore the effectiveness of, the BDTRP. The BDTRT recommended outreach be maintained and conducted consistently. For example, NMFS fishery liaisons or mailings are effective approaches in consistently informing fishermen of any BDTRP updates. The BDTRT also recommended holding fishermen working groups to better understand the nature of bottlenose dolphin interactions with specific gear types, as fishermen can provide important knowledge in trends or patterns of interactions. The BDTRT further recognized the value of highlighting the success of the BDTRP if an affected stock reaches the MMPA long-term goal (i.e., serious injury and mortality is below 10 percent of a stock's PBR level). Using success stories as platforms for education and outreach is an important tool, especially when encouraging compliance with the plan regulations.
The observer program is vital for measuring if take reduction plan regulations are effective in reducing serious injury and mortality of bottlenose dolphins and monitoring changes in interaction rates between bottlenose dolphins and affected fisheries. Previous BDTRT recommendations focused on enhancing and improving the overall precision and accuracy of observer data. Recent BDTRT meeting recommendations encouraged focusing observer coverage in specific geographic areas and fisheries, improving observer data collection and quality, and measures of fishing effort. Specifically, the BDTRT recommended enhancing and prioritizing observer coverage in: (1) The North Carolina beach seine fishery; (2) gillnets targeting Spanish mackerel in inshore waters of North Carolina; and
Enforcement is important for compliance monitoring of take reduction plan regulations. If the plan is not reaching its goals, NMFS will determine if non-compliance is a factor. The BDTRT recommended coordination with state and other Federal agencies on enforcement activities.
At the team's 2009 meeting, some abundance estimates and PBRs for stocks were unknown due to the recent revisions in bottlenose dolphin stock structure. However, the team noted at the meeting that the mortality estimate for the Northern North Carolina Estuarine System Stock may be approaching or exceeding PBR. The BDTRT recommended that after NMFS updates the abundance estimate and PBR for the stock, if PBR is determined to have been exceeded, the BDTRT be convened via conference call or in-person meeting to ensure more real-time communications and monitoring of the BDTRP's effectiveness. Having such discussions in real-time allows for an adaptive management approach to more quickly target potential reasons the BDTRP is not achieving its short-term goal and begin considering effective solutions.
The Western North Atlantic coastal bottlenose dolphin morphotype is continuously distributed in estuarine and coastal waters along the United State's Atlantic coast. Based on spatial and temporal patterns in strandings during a die-off from 1987-1988, bottlenose dolphins in coastal waters along the Atlantic coast were designated as a single coastal stock (Western North Atlantic coastal bottlenose dolphin stock) that migrated seasonally between New Jersey and central Florida. This Western North Atlantic coastal bottlenose dolphin stock was considered strategic due to depletion during the 1987-1988 die-off and interactions with nine Category I and II commercial fisheries. The BDTRT was formed in 2001 and the BDTRP implemented in 2006 to reduce impacts from commercial fishing. The geographic scope and affected area of the BDTRP was based on the habitat and range of the Western North Atlantic coastal stock, including all tidal and marine waters within 6.5 nautical miles (12 km) of shore from the New York-New Jersey border southward to Cape Hatteras, North Carolina, and within 14.6 nautical miles (27 km) of shore from Cape Hatteras southward to, and including, the east coast of Florida.
During the BDTRT's initial deliberations in developing the draft BDTRP, research demonstrated the Western North Atlantic coastal bottlenose dolphin stock was not a single migratory stock, but rather a complex mosaic of stocks occupying estuarine and coastal waters. The stock was, therefore, separated into seven discrete management units with spatial and temporal components for purposes of developing the draft BDTRP. However, the entire range of the Western North Atlantic coastal stock was used for the geographic scope of the BDTRP. PBR, abundance estimates, and mortality estimates for the Western North Atlantic coastal stock were determined and assigned per management unit. These management units were used until additional data collection and analyses were completed to allow redefinition of discrete stocks (as opposed to seasonal management units) in 2009.
Genetic analyses, assessments of ranging patterns of bottlenose dolphins from long-term photographic identification studies, and satellite-telemetry tag studies were summarized to redefine stock structure. The stock structure now consists of nine estuarine system stocks and five coastal stocks. This description is not complete, however, because of insufficient information for some estuarine waters to evaluate stock structure, and limited information on the movement patterns of some of the coastal stocks. Targeted genetic studies showed genetic differentiation among coastal and estuarine stocks and separation between bottlenose dolphins occurring in estuarine versus coastal waters. Photo-identification studies described the seasonal ranging patterns of estuarine stocks and indicated some stocks (e.g., the Northern North Carolina Estuarine Stock) move offshore into nearshore coastal waters at particular times of year. Additionally, seasonal immigration/emigration and transient animals occur within estuaries, suggesting some degree of spatial overlap between estuarine and coastal animals (Waring
The Western North Atlantic coastal morphotype of bottlenose dolphins was, therefore, revised to include 14 stocks of coastal (five stocks) and estuarine (nine stocks) bottlenose dolphins instead of one previous migratory stock. All stocks within the coastal morphotype are still considered strategic, except the Florida Bay Stock. Therefore, thirteen of the 14 bottlenose dolphin stocks are affected under the BDTRP because they are strategic and interact with Category I and II commercial fisheries. The following is a list of the revised bottlenose dolphin stocks, along with a description of their spatial and/or temporal distributions as now included in the BDTRP (Waring
1. Western North Atlantic Northern Migratory Coastal Stock, which occupies coastal waters from the shoreline to approximately the 25 meter isobath between the mouth of the Chesapeake Bay in Virginia and Long Island, New York during the summer months (July-September); and moves south occupying coastal waters from Cape Lookout, North Carolina to the Virginia/North Carolina border during the winter months (January-March).
2. Western North Atlantic Southern Migratory Coastal Stock, which occupies coastal waters north of Cape Lookout, North Carolina to the eastern shore of Virginia and potentially inside the Chesapeake Bay, Virginia during summer months (July-September); occupies waters south of Cape Lookout during the fall (October-December); moves as far south as northern Florida during the winter (January-March); and moves back north to occupy waters of North Carolina during the spring (April-June).
3. Western North Atlantic South Carolina/Georgia Coastal Stock, which occupies coastal waters year-round from the North Carolina/South Carolina border to the Georgia/Florida border.
4. Western North Atlantic Northern Florida Coastal Stock, which occupies
5. Western North Atlantic Central Florida Coastal Stock, which occupies coastal waters year-round from 29.4° N. to the western end of Vaca Key, Florida.
6. Northern North Carolina Estuarine System Stock, which occupies Pamlico Sound, North Carolina and nearshore coastal waters (less than 1 km from shore) of North Carolina to Virginia Beach during the summer and fall (July-October); moves out of the estuarine waters and occupies nearshore coastal waters (less than 1 km from shore) between Capes Lookout and Hatteras, North Carolina during the late fall and winter (November-March); and occupies nearshore coastal (less than 1 km from shore) and estuarine waters of southern North Carolina during the spring (April-June).
7. Southern North Carolina Estuarine System Stock, which occupies estuarine and nearshore coastal waters (less than 3 km from shore) between the North Carolina/South Carolina border and Core Sound, North Carolina during the summer and fall (July-October); and moves south to occupy coastal nearshore waters near Cape Fear, North Carolina during the late fall through spring (November-June).
8. Charleston Estuarine System Stock, which occupies the riverine and estuarine waters year-round from Prince Inlet, South Carolina to the north and the North Edisto River, South Carolina to the south.
9. Northern Georgia/Southern South Carolina Estuarine System Stock, which occupies all estuarine, riverine, and creek waters year-round from the southern extent of the North Edisto River, South Carolina to the northern extent of Ossabaw Sound, South Carolina.
10. Southern Georgia Estuarine System Stock, which occupies all estuarine, intracoastal waterways, sounds, rivers, and tributaries year-round from the Altamaha River, Georgia to the Cumberland River at the Georgia/Florida border.
11. Jacksonville Estuarine System Stock, which occupies all estuarine and riverine waters year-round from Cumberland Sound at the Florida/Georgia border to Jacksonville Beach, Florida.
12. Indian River Lagoon Estuarine System Stock, which occupies all estuarine, riverine and lagoon waters year-round from Ponce de Leon Inlet, Florida to Jupiter Inlet, Florida.
13. Biscayne Bay Stock, which occupies all estuarine waters year-round from Haulover Inlet, Florida to Card Sound Bridge.
To reflect updated knowledge and understanding of bottlenose dolphin stock structure, this proposed rule updates 50 CFR 229.35(a) by removing the reference to the “Western North Atlantic bottlenose dolphin coastal stock” and replacing it with “stocks of bottlenose dolphins within the Western North Atlantic coastal morphotype”. Updating the bottlenose dolphin stocks included in the BDTRP will not modify management measures in the BDTRP. Although the management units were used to inform the development of the BDTRP, management measures in the BDTRP are still applicable based on the temporal and seasonal movements of each stock and Category I and II fisheries affected and regulated by the BDTRP. Each stock has its own abundance and mortality estimates, as well as associated PBRs. NMFS will continue monitoring serious injury and mortality for each stock through observer program and stranding data. NMFS will also continue evaluating the effectiveness of the BDTRP by monitoring serious injury and mortality estimates of bottlenose dolphins relative to the short- and long-term goals of the BDTRP.
Since finalizing and implementing the BDTRP in May 2006, two errors in the BDTRP implementing regulations were identified. This proposed rule corrects the two errors as follows: (1) The current boundary for Southern North Carolina State Waters and South Carolina in 50 CFR 229.35(b) uses North Carolina/South Carolina at the coast (33°52′ N.) for the southern part of the boundary. Similarly, the definition for South Carolina, Georgia, and Florida waters use the same latitude for the northern part of the boundary. The latitude 33°52′ N., however, does not accurately reflect the actual border. This proposed rule modifies the coordinate to accurately reflect the North Carolina/South Carolina border at the coast. The border for North Carolina/South Carolina would be defined as the latitude corresponding with 33°51′07.9″ N. at the coast as described by “Off South Carolina” in 50 CFR 622.2 of this title (Fisheries of the Caribbean, Gulf, and South Atlantic—Definitions and Acronyms); and (2) In the regulatory text implementing the BDTRP, both 50 CFR 229.35(d)(1)(i) and 229.35(d)(2)(i) describe regional management measures for New Jersey, Delaware, Maryland, and Virginia state waters specific to medium and large mesh gillnet gear. In specifying the regulated gear type, the word “gillnet” was not included in the titled description of the management measures, reading “Medium and large mesh”. It is clear in the regulatory text these regulations are for both medium and large mesh gillnet gear. Therefore, this proposed rule corrects this omission in the two title descriptions by adding the word “gillnet”, so the title would read “Medium and large mesh gillnets” for gear regulated under § 229.35(d)(1)(i) and 229.35(d)(2)(i).
This proposed rule has been determined to be not significant under Executive Order 12866.
NMFS determined this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of North Carolina. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act on December 22, 2011. North Carolina concurred with the consistency determination in a letter dated January 23, 2012.
This action contains policies with federalism implications that were sufficient to warrant preparation of a federalism summary impact statement under Executive Order 13132 and a federalism consultation with officials in the state of North Carolina. Accordingly, the Assistant Secretary for Legislative and Intergovernmental Affairs provided notice of the proposed action to the appropriate officials in North Carolina.
NMFS determined this action is categorically excluded from the requirement to prepare an Environmental Assessment (EA) in accordance with sections 5.05b and 6.03c.3(i) of NOAA's Administrative Order (NAO) 216-6 for implementing the National Environmental Policy Act. Specifically, this proposed action, if implemented, permanently maintains, without modification, a current regulation that would not substantially change the regulation or have a significant impact on the environment. NMFS prepared an EA on the final rule (71 FR 24776, April 19, 2006) to implement the BDTRP, which included an analysis of the proposed action without time constraints. The EA analyzed all regulations in the final BDTRP of which the regulations addressed in this proposed rule were a component. The EA resulted in a finding of no significant impact. In accordance with section 5.05b of NAO 216-6, the proposed regulations were determined to not likely result in significant impacts as defined in 40 CFR 1508.27. This action does not trigger the exceptions to categorical exclusions listed in NAO 216-6, Section 5.05c. A
An Endangered Species Act section 7 consultation was conducted on this action and found that it may affect, but is not likely to adversely affect, threatened and endangered species. There is no designated critical habitat under NMFS' jurisdiction in the action area, so critical habitat was not affected. Furthermore, the only impacts from this action are expected to be beneficial to listed species because the proposed action will maintain reduced soak times in medium mesh gillnet fishing in North Carolina state waters.
This proposed rule does not contain collection-of-information requirements subject to the Paperwork Reduction Act.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration 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 determination is as follows.
The purpose of this proposed rule is to continue reducing serious injuries and mortalities to bottlenose dolphins incidental to commercial fishing operations and ensure serious injuries and mortalities do not exceed PBR levels, as mandated by the MMPA. The MMPA provides the statutory basis for this proposed rule.
This proposed rule would not establish any new reporting, recordkeeping, or other compliance requirements. No duplicative, overlapping, or conflicting Federal rules have been identified.
Initial and final regulatory flexibility analyses, dated April 2006, were prepared for the BDTRP. These analyses determined all commercial fishing entities using medium mesh gillnets in the manner and location encompassed by the proposed action implementing the BDTRP would be affected. Because this rule, if implemented, would continue the existing restrictions on this gear sector, all entities using this gear would potentially be directly affected.
As detailed in the analyses for the 2006 BDTRP, a total of 1,321 unique participants were identified as having recorded landings using medium mesh gillnet gear during the 2001 fishing season (November 2000-October 2001) in North Carolina. Total harvests with this gear were valued at approximately $13.8 million (nominal ex-vessel value), or approximately 18% of total fishing revenues by these entities of approximately $77 million (nominal ex-vessel value). The average annual revenue from the harvest of all marine species by these vessels was approximately $58,000.
The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. Based on the estimated average annual revenue of vessels using medium mesh gillnet gear in North Carolina from the 2001 fishing season, the analyses conducted for the BDTRP determined all entities expected to be affected by the proposed action were small business entities. Comparable average revenue estimates for current entities in North Carolina using medium mesh gillnet gear are not available. However, although time has elapsed since the initial BDTRP analyses, no information has been identified to suggest economic performance in this sector has substantially improved since 2001, and the disparity between the 2001 average ($58,000) and the SBA threshold ($4.0 million) is sufficiently large to conclude participants in this sector of the commercial fishery remain small business entities. As a result, all commercial entities expected to be directly affected by this proposed rule, if implemented, are determined for the purpose of this analysis to be small business entities.
Although this proposed rule, if implemented, would restrict the behavior of entities using medium mesh gillnets in North Carolina coastal state waters, it would not directly affect any current fishing revenues or fishing practices nor likely prevent fishermen from the harvesting the increasing spiny dogfish quotas as indicated below. The scope of this proposed rule is the same as analyzed in support of the 2006 BDTRP. As detailed in the analyses provided supporting the 2006 BDTRP, the initial implementation of the restriction was estimated to result in an estimated reduction in ex-vessel revenue of approximately $296,000, or less than 1% of total ex-vessel revenue for the affected entities. This low impact was likely affected by the decline in spiny dogfish harvests, which have historically been the primary target of this gear in North Carolina. Spiny dogfish harvests declined from approximately 3.5 million pounds in 2000 to less than 20,000 pounds per year in 2005 and 2006. As discussed in the preamble, landings of spiny dogfish in North Carolina began increasing in 2009. For the 2010-2011 fishing season, 181 vessels recorded spiny dogfish landings of approximately 1.71 million pounds valued at approximately $257,000. The recent increase in spiny dogfish harvests demonstrates fishermen have adapted their fishing practices and are successfully harvesting spiny dogfish despite the current BDTRP gear restrictions. Therefore, the proposed continuation of these restrictions would not cause fishermen to lose actual income, but would only preclude potential future income from fishing with medium mesh gillnets in the manner subject to this proposed regulation. Because this proposed rule, if implemented, would only continue the prohibition of a fishing practice that has not been used since 2006, current revenues or profits of any small entity would not be affected because this action is not expected to prohibit fishermen from harvesting spiny dogfish quotas. Further, current participants in the affected fishery have demonstrated the ability to successfully harvest the primary target species for the affected gear, and fishing revenues for the target species have been increasing despite the BDTRP restriction. Therefore, this proposed rule, if implemented, would not be expected to have a significant, direct adverse economic effect on the profits of a substantial number of small entities.
Because this proposed rule, if implemented, is not expected to have any direct adverse economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
Administrative practice and procedure, Confidential business information, Fisheries, Marine mammals, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 229 is proposed to be amended as follows:
1. The authority citation for 50 CFR part 229 continues to read as follows:
16. U.S.C. 1361
2. In § 229.35 paragraph (a), the definitions of
(a)
(b) * * *
(d) * * *
(1) * * *
(i)
(2) * * *
(i)
(4) * * *
(ii)
(5) * * *
(i)
National Marine Fisheries Service (NMFS), National Oceanic and
Proposed rule; request for comments.
NMFS proposes to implement management measures described in a regulatory amendment to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this rule would increase the commercial and recreational quotas for red snapper in the Gulf of Mexico (Gulf) reef fish fishery for the 2012 fishing year, and for the 2013 fishing year if NMFS determines the acceptable biological catch (ABC) is not exceeded in the 2012 fishing year. This rule would also eliminate the October 1 closure date of the recreational fishing season. This proposed rule is intended to provide more flexibility in managing recreational red snapper and to help achieve optimum yield (OY) for the Gulf red snapper resource without increasing the risk of red snapper experiencing overfishing.
Written comments must be received on or before April 27, 2012.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2012-0024” by any of the following methods:
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To submit comments through the Federal e-Rulemaking Portal:
Comments received through means not specified in this rule will not be considered.
For further assistance with submitting a comment, see the “Commenting” section at
Electronic copies of the regulatory amendment, which includes an environmental assessment and a regulatory impact review, may be obtained from the Southeast Regional Office Web Site at
Cynthia Meyer, Southeast Regional Office, NMFS, telephone 727-824-5305; email:
NMFS and the Council manage the Gulf reef fish fishery under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Southeast Data, Assessment, and Review (SEDAR) update assessment for Gulf red snapper, conducted in August 2009 (SEDAR 9), determined that overfishing had ended for the red snapper stock, and that the ABC may be increased. The stock, however, is still overfished and under a rebuilding plan through 2032. The next SEDAR benchmark stock assessment currently scheduled for Gulf red snapper is in 2012.
The Council's Scientific and Statistical Committee (SSC) met January 10-13, 2012, and recommended new ABCs for the 2012 and 2013 fishing years. For 2012, the SSC recommended an ABC of 8.080 million lb (3.665 million kg) and for 2013, the SSC recommended an ABC of 8.690 million lb (3.942 million kg). The Council met January 30-February 2, 2012, and voted to implement these new ABCs through the 2012 Gulf red snapper regulatory amendment.
This rule would set the 2012 and 2013 commercial and recreational quotas for red snapper based on the ABCs recommended by the SSC and on the current commercial and recreational allocations (51-percent commercial and 49-percent recreational). Therefore, the 2012 commercial quota would be set at 4.121 million lb (1.869 million kg), round weight, and the 2012 recreational quota would be set at 3.959 million lb (1.796 million kg), round weight. The 2013 quotas would be set at 4.432 million lb (2.010 million kg), round weight, for the commercial sector, and 4.258 million lb (1.931 million kg), round weight, for the recreational sector, if NMFS determines that the ABC is not exceeded in the 2012 fishing year. If NMFS determines the 2012 ABC is exceeded, NMFS will maintain the 2012 commercial and recreational quotas in the 2013 fishing year. If this is the case, the Assistant Administrator will file a notification with the Office of the Federal Register to announce that commercial and recreational quotas will remain at 2012 levels in the 2013 fishing year.
This rule would change the end of the recreational fishing season from October 1 to December 31. Under 50 CFR 622.34 (m), the red snapper recreational fishing season opens each year on June 1 and closes when the recreational quota is projected to be reached, but no later than October 1. Prior to June 1 each year, NOAA projects the closing date based on the previous year's data, and notifies the public of the closing date for the upcoming season. If subsequent data indicate the quota has not been reached by that closing date, NMFS may reopen the season, but only until the October 1 end date.
In 2010, following the closure of large areas of the Gulf in response to the Deepwater Horizon MC252 oil spill, NMFS determined the recreational quota was not caught during the open period. However, the October 1 end of the fishing season prevented NMFS from reopening the season to allow the remainder of the recreational quota to be caught. Instead, the Secretary had to take emergency action to reopen the season. Changing the end date of the fishing season to December 31 will allow NMFS to reopen the season through December 31, the end of the fishing year, thus maximizing this sector's opportunity to harvest its full quota and giving the Council and NMFS greater flexibility to manage the red snapper recreational fishing season.
In addition to proposing the change to the end of the fishing season, NMFS is currently reviewing preliminary landings information used in projecting recreational red snapper harvest for the 2012 fishing year. After finalized 2011 recreational landings data are available and before the season opens on June 1, 2012, NMFS will announce when the
The red snapper management measures contained in this proposed rule would achieve the goal of National Standard 1 of the Magnuson-Stevens Act, which states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield for the fishery.
This rule also proposes to revise the definition for “shrimp” in the codified text, which was inadvertently not revised in a previous final rule. The final rule for Amendment 5 to the FMP for the Shrimp Fishery of the Gulf of Mexico (56 FR 22827, May 17, 1991) removed “seabobs” from the fishery management unit (FMU), however, the definition for “shrimp” in § 622.2 was not revised to remove “seabobs” at that time. Seabobs were never included in the FMU under the FMP for the Shrimp Fishery of the South Atlantic Region, and both FMP's management units are comprised of the same species. This rule would revise the definition of “shrimp” to correct NMFS' oversight.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration 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 determination is as follows:
The purpose of this proposed rule is to eliminate the October 1 closure date of the recreational fishing season to provide more flexibility in managing recreational red snapper, set the 2012 commercial and recreational quotas for the red snapper component of the Gulf reef fish fishery, and set the 2013 commercial and recreational quotas for red snapper if NMFS determines the ABC is not exceeded in the 2012 fishing year. These proposed actions would be expected to increase the likelihood of achieving OY. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
This proposed rule, if implemented, would be expected to directly affect all commercial vessels and for-hire vessels that harvest red snapper. In order to harvest red snapper in excess of the bag limit and sell red snapper, a commercial reef fish permit and enough allocation in a fisherman's IFQ account is required. An estimated 920 vessels possess a commercial Gulf reef fish permit. However, over the period 2007-2010, only an average of 323 vessels per year recorded commercial red snapper harvests. As a result, for the purpose of this assessment, NMFs estimates that the number of potentially affected commercial vessels to range from 323-920. The average commercial vessel in the Gulf reef fish fishery is estimated to earn approximately $48,000 (all figures in 2010 dollars), while the average annual revenue for a vessel with red snapper landings was approximately $88,000 over the period 2007-2010.
A Federal Gulf reef fish for-hire vessel permit is required for for-hire vessels to harvest red snapper. On January 30, 2012, there were 1,377 valid (non-expired) or renewable reef fish for-hire vessel permits. An expired permit may not be actively fished, but is renewable for 1 year from the date of expiration. The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. Although the for-hire permit does not distinguish between headboats and charterboats, an estimated 69 headboats operate in the Gulf. The average charterboat is estimated to earn approximately $89,000 in annual revenue, while the average headboat is estimated to earn approximately $469,000.
No other small entities that would be expected to be directly affected by this proposed rule have been identified.
The Small Business Administration has established size criteria for all major industry sectors in the U.S., including fish harvesters and recreational services. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. The revenue threshold for a business involved in the for-hire fishing industry is $7.0 million (NAICS code 713990, recreational industries). Based on the average revenue estimates provided above, NMFS determined that all commercial and for-hire vessels expected to be directly affected by this proposed rule are for the purpose of this analysis small business entities.
This proposed rule, if implemented, would not be expected to significantly reduce profits for a substantial number of small entities. This proposed rule would eliminate the October 1 closure date of the recreational fishing season, set the commercial and recreational quotas for 2012, and set the commercial and recreational quotas for 2013 if the ABC is not exceeded in the previous fishing year. At best, this action may result in increased operational efficiency and associated increased profits for for-hire entities associated with the recreational harvest of red snapper. The recreational red snapper season currently opens on June 1 and closes when the recreational sector quota is harvested, or is projected to be harvested, but no later than October 1. If the recreational quota is not harvested during this period, reopening the season would require additional regulatory action. Although the regulatory process required to reopen the season could, in theory, be completed in time to avoid a delay in reopening, i.e., the season could reopen on October 1, because of the administrative process, it is more likely that the season would end on October 1 and reopen later in the year. If this occurs, for-hire services associated with the recreational harvest of red snapper could not be continuously offered. Interruption of business could result in increased costs and operational inefficiencies, producing a net reduction in profits to for-hire entities despite a potentially unchanged number of total fishing trips and associated revenue. Eliminating the fixed October 1 closure date would be expected to increase the likelihood of an uninterrupted season, eliminating these operational inefficiencies, and potentially increasing profits. As a result, at best, this action may increase the likelihood of improved operational efficiency and increased profits to small entities.
NMFS notes, however, that this action, if implemented, would not likely have any direct economic effect on any small entities in the near-term or foreseeable future. Currently, the recreational red snapper season can remain open, if quota is available, through September 30 and this proposed rule would change this date to December 31. The recreational red snapper season in recent years, however, with the exception of 2010 when harvest was reduced as a result of the Deepwater Horizon MC252 oil spill, has not extended beyond July or August.
This proposed rule would also increase the combined commercial and recreational red snapper quotas in 2012 by 895,000 lb (405,965 kg) and by an additional 610,000 lb (276,691 kg) in 2013 (or a total increase of 1.505 million lb (0.683 million kg) over the 2011 combined commercial and recreational quotas), if the 2012 combined quota is not exceeded. These increases would be expected to result in an increase in revenue and profits to the affected commercial and for-hire fishing businesses.
In summary, this proposed rule, if implemented, would be expected to increase profits to all directly affected small entities.
Because this proposed rule, if implemented, would not be expected to have any direct adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.2, the definition for “shrimp” is revised to read as follows:
(1) Brown shrimp,
(2) White shrimp,
(3) Pink shrimp,
(4) Royal red shrimp,
(5) Rock shrimp,
3. In § 622.34, paragraph (m) is revised to read as follows:
(m)
4. In § 622.42, paragraphs (a)(1)(i) and (a)(2)(i) are revised to read as follows:
(a) * * *
(1) * * *
(i)
(B) For fishing year 2013—4.432 million lb (2.010 million kg), round weight.
(2) * * *
(i)
(B) For fishing year 2013, the recreational quota for red snapper is 4.258 million lb (1.931 million kg), round weight.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule.
NMFS proposes to implement the annual catch limit (ACL), harvest guideline (HG), annual catch target (ACT) and associated annual reference points for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast for the fishing season of July 1, 2011, through June 30, 2012. This rule is proposed according to the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed 2011/2012 ACL or maximum HG for Pacific mackerel is 40,514 metric tons (mt). The proposed ACT, which will be the directed fishing harvest target, is 30,386 mt. If the fishery attains the ACT, the directed fishery will close, reserving the difference between the ACL and ACT (10,128 mt) as a set aside for incidental landings in other CPS fisheries and other sources of mortality. This rule is intended to conserve and manage the Pacific mackerel stock off the U.S. West Coast.
Comments must be received by April 30, 2012.
You may submit comments on this document identified by NOAA-NMFS-2012-0072 by any of the following methods:
•
•
•
Copies of the report “Pacific Mackerel (
Joshua Lindsay, Southwest Region, NMFS, (562) 980-4034.
During public meetings each year, the estimated biomass for Pacific mackerel is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species (CPS) Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fisheries are reviewed and discussed. The biomass estimate is then presented to the Council along with the calculated overfishing limit (OFL) and available biological catch (ABC), annual catch limit (ACL) and harvest guideline (HG) and/or annual catch target (ACT) recommendations and comments from the Team, Subpanel and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS.
This proposed rule would implement the 2011/2012 ACL, HG, ACT and other annual catch reference points, including OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass, for Pacific mackerel in the U.S. EEZ off the Pacific coast. (The EEZ off the Pacific Coast encompasses ocean waters seaward of the outer boundary of state waters, which is 3 nautical miles off the coast, out to a line 200 nautical miles from the coast.) The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific mackerel fishery based on the annual specification framework in the FMP. This framework includes a harvest control rule that determines the maximum HG, the primary management target for the fishery, for the current fishing season. The HG is based, in large part, on the current estimate of stock biomass. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:
1.
2.
3.
4.
At the June 2011 Council meeting, the Council adopted the 2011-12 Pacific mackerel assessment and a Pacific mackerel biomass estimate of 211,126 metric tons (mt). Based on recommendations from its SSC and other advisory bodies, the Council recommended and NOAA Fisheries (NMFS) is proposing, an OFL of 44,336 mt, an ABC of 42,375 mt, an ACL and maximum harvest guideline (HG) of 40,514 mt, and an ACT of 30,386 mt for the 2011/2012 Pacific mackerel fishing year. These catch specifications are based on the most recent stock assessment and the control rules established in the CPS FMP.
If the ACT is attained, the directed fishery will close, and the difference between the ACL and ACT (10,128 mt) will be reserved as a set aside for incidental landings in other CPS fisheries and other sources of mortality. In that event, for the remainder of the fishing year, incidental harvest measures will be in place, including a 45 percent incidental catch allowance when Pacific mackerel are landed with other CPS (in other words, no more than 45% by weight of the CPS landed per trip may be Pacific mackerel), except that up to 1 mt of Pacific mackerel could be landed without landing any other CPS. Upon the fishery attaining the ACL/HG (40,514 mt), no vessels in CPS fisheries may retain Pacific mackerel. The purpose of the incidental set-aside and allowance of an incidental fishery is to allow for the restricted incidental landings of Pacific mackerel in other fisheries, particularly other CPS fisheries, when the directed fishery is closed to reduce bycatch and allow for continued prosecution of other important CPS fisheries.
The NMFS Southwest Regional Administrator will publish a notice in the
Detailed information on the fishery and the stock assessment are found in the report “Pacific Mackerel (
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.
These proposed specifications are exempt from review under Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the reasons as follows:
The purpose of this proposed rule is to implement the 2011/2012 annual specifications for Pacific mackerel in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an OFL, ABC, ACL and HG or ACT for the Pacific mackerel fishery based on the harvest control rules in the FMP. The specific harvest control rule is applied to the current stock biomass estimate to derive the annual HG, which is used to manage the commercial take of Pacific mackerel.
The U.S. Small Business Administration defines small businesses engaged in fishing as those vessels with annual revenues of or below $4 million. The small entities that would be affected by the proposed action are the vessels that compose the West Coast CPS finfish fleet. Pacific mackerel harvest is one component of CPS fisheries off the U.S. West Coast, which primarily includes the fisheries for Pacific sardine, northern anchovy and market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N. latitude; Point Arena, California) of the fishery. Sixty-four vessels are currently permitted in the Federal CPS limited entry fishery off California. The average annual per vessel revenue in 2010 for the West Coast CPS finfish fleet was
The profitability of these vessels as a result of this proposed rule is based on the average Pacific mackerel ex-vessel price per mt. NMFS used average Pacific mackerel ex-vessel price per metric ton (mt) to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was limited or unavailable.
For the 2010/2011 fishing year the HG was 11,000 metric tons (mt) and was divided into a directed fishery of 8,000 mt and an incidental fishery of 3,000 mt. Approximately 2,100 mt of this HG was harvested in 2010/2011 fishing season with an estimated ex-vessel value of $414,256 mt. Using these figures, the average 2010/2011 ex-vessel price per mt of Pacific mackerel was approximately $200.
The proposed ACL/HG for the 2011/2012 Pacific mackerel fishing season is 40,514 mt, with a directed fishing harvest target or ACT of 30,386 mt. This season's directed fishing target is more than 3 times higher than that of the previous year. If the fleet were to take the entire 2011/2012 ACT, and assuming a coastwide average ex-vessel price per mt of $206 (average of 2009 and 2010 ex-vessel), the potential revenue to the fleet would be approximately $6.3 million. However, this result will depend greatly on market forces within the fishery, and on the regional availability of the resource to the fleet and the fleets' ability to find schools of Pacific mackerel.
Over recent years, the profitability from fishing Pacific mackerel has depended less on the catch level, and more on market forces within the fishery as well as the other CPS fisheries, and on the regional availability of the species to the fleet and the fleets' ability to easily find schools relatively close to port. If there is no change in market conditions (i.e., an increase demand for Pacific mackerel product) or proximity of the fish to the fleet, it is not likely that the full ACT will be taken during the 2011-2012 fishing year, in which case profits will be lower than if the entire ACT were taken. The annual average U.S. Pacific mackerel harvest from 2001 to 2010 is approximately 4,500 mt, and over the last 10 years landings have averaged approximately 6,000 mt without exceeding 10,000 mt. As a result, it is unlikely that the ACT proposed in this rule will limit the potential profitability of the fleet from Pacific mackerel.
However, the revenue derived from harvesting Pacific mackerel is only one factor determining the overall revenue for a majority of the vessels in the CPS fleet, and, therefore, the economic impact to the fleet from the proposed action cannot be viewed in isolation. CPS vessels typically harvest a number of other species, including Pacific sardine, market squid, northern anchovy, and tuna, but focus on Pacific sardine, which had an estimated ex-vessel of $12.5 million in 2010, and market squid, which had an estimated ex-vessel of $71 million in 2010. Therefore, Pacific mackerel is only a small component of this multi-species CPS fishery and with the incidental catch provisions in this rule, the fleet will continue to be able to catch these other profitable species if the ACT is reached and directed mackerel fishing is closed.
Based on the disproportionality and profitability analysis above, this rule, if adopted, will not have a significant economic impact on a substantial number of these small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
There are no reporting, record-keeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.
This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. 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 and 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), Washington, DC,
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.
Import Administration, International Trade Administration, Department ofCommerce.
On December 6, 2011, the Department of Commerce (“Department”) published in the
Effective April 12, 2012.
Susan Pulongbarit, AD/CVD Operations,
As noted above, on December 6, 2011, the Department published in the
We have not made any changes to the
The merchandise subject to the order is uncovered innerspring units composed of a series of individual metal springs joined together in sizes corresponding to the sizes of adult mattresses (
Uncovered innerspring units are suitable for use as the innerspring component in the manufacture of innerspring mattresses, including mattresses that incorporate a foam encasement around the innerspring.
Pocketed and non-pocketed innerspring units are included in this definition. Non-pocketed innersprings are typically joined together with helical wire and border rods. Non-pocketed innersprings are included in this definition regardless of whether they have border rods attached to the perimeter of the innerspring. Pocketed innersprings are individual coils covered by a “pocket” or “sock” of a nonwoven synthetic material or woven material and then glued together in a linear fashion.
Uncovered innersprings are classified under subheading 9404.29.9010 and have also been classified under subheadings 9404.10.0000, 7326.20.0070, 7320.20.5010, or 7320.90.5010 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope of the order is dispositive.
In the
The dumping margin for the POR is as follows:
Upon
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 234.51 percent; (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter; and (4) for Goodnite the cash deposit rate will be 234.51 percent. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.
In accordance with 19 CFR 351.305(a)(3), this notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested.
We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) has determined that Aperam Stainless Belgium N.V. (“Aperam”) is the successor-in-interest to ArcelorMittal Stainless Belgium N.V. (“AMSB”). As a result, Aperam will be accorded the same treatment previously accorded AMSB with regard to the antidumping duty order on stainless steel plate in coils from Belgium (“SSPC from Belgium”), effective as of the date of publication of this notice in the
Effective April 12, 2012.
George McMahon or Stephanie Moore, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1167 and (202) 482-3692, respectively.
On May 21, 1999, the Department published in the
On July 29, 2011, the Department published its initiation of the instant changed circumstances review of the antidumping duty order on SSPC from Belgium.
On October 26, 2011, the Department published its preliminary results of changed circumstances review of the
The issue raised in Aperam's case brief is addressed in the “Issues and Decision Memorandum for the Final Results of the Changed Circumstances Review of the Antidumping Duty Order on Stainless Steel Plate in Coils from Belgium,” from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, (“Issues and Decision Memorandum”),
The product covered by this order is certain stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheadings: 7219.11.00.30, 7219.11.00.60, 7219.12.00.06, 7219.12.00.21, 7219.12.00.26, 7219.12.00.51, 7219.12.00.56, 7219.12.00.66, 7219.12.00.71, 7219.12.00.81, 7219.31.00.10, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.11.00.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to these orders is dispositive.
Based on the information provided by Aperam, the Department's analysis in the
We will instruct U.S. Customs and Border Protection to apply the cash-deposit rate in effect for AMSB to all entries of the subject merchandise from Aperam that were entered, or withdrawn from warehouse, for consumption on or after the date of publication of these final results of the changed circumstances review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Tariff Act of 1930, as amended, and 19 CFR 351.216(e).
Import Administration, International Trade Administration, Department of Commerce.
On November 15, 2011, the Department of Commerce (the Department) published in the
Effective April 12, 2012.
Jun Jack Zhao, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1396.
We preliminarily rescinded the NSR for Heze Huayi on November 15, 2011.
Pursuant to 19 CFR 351.214(g), the period of review (POR) for this NSR is June 1, 2010, through December 31, 2010.
The products covered by the order are chlorinated isocyanurates, which are derivatives of cyanuric acid, described as chlorinated s-triazine triones. There are three primary chemical compositions of chlorinated isocyanurates: (1) Trichloroisocyanuric acid (Cl
Chlorinated isocyanurates are currently classifiable under subheadings 2933.69.6015, 2933.69.6021, 2933.69.6050, 3808.40.50, 3808.50.40 and 3808.94.5000 of the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification 2933.69.6015 covers sodium dichloroisocyanurates (anhydrous and dihydrate forms) and trichloroisocyanuric acid. The tariff classifications 2933.69.6021 and 2933.69.6050 represent basket categories that include chlorinated isocyanurates and other compounds including an unfused triazine ring. Although the HTSUS subheadings are provided for convenience and customs purposes, the
Section 776(a) of Tariff Act of 1930, as amended (the Act) provides that the Department shall apply “facts otherwise available” (FA) if,
When the Department relies on secondary information rather than on information obtained in the course of an investigation or review, section 776(c) of the Act provides that, to the extent practicable, the Department shall corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition, the final determination concerning the subject merchandise, or any previous review under section 751 of the Act concerning the subject merchandise. To corroborate means that the Department will satisfy itself that the secondary information to be used has probative value.
The FA rate of 2.66 percent selected for Heze Huayi is based on information submitted in a previous segment of this proceeding, the 2008-2009 administrative review. It is a calculated rate based solely on the questionnaire responses of the mandatory respondent in that review from the immediately preceding review period. Given that this rate is based on recent information submitted by a cooperative respondent producer of the subject merchandise under this same order, we find that the rate is reliable and relevant for use in this administrative review. Therefore, it has probative value for use as FA. As such, the Department finds this rate to be corroborated to the extent practicable, consistent with section 776(c) of the Act.
Based on our analysis of all of the comments and information on the record, the Department has decided not to maintain its preliminary rescission results for these final results. In the
As a result of our review, we determine the following antidumping margin exists for the period June 1, 2010, through December 31, 2010.
Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b), the Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this NSR. The Department will direct CBP to assess importer-specific assessment rates based on the
Effective upon publication of the final results of the NSR, we will instruct CBP to discontinue the option of posting a bond or security in lieu of a cash deposit for entries of subject merchandise exported by Heze Huayi. The following cash deposit requirements will be effective for all shipments of subject merchandise by Heze Huayi, entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of Act: (1) For subject merchandise produced and exported by Heze Huayi, the cash deposit rate will be the percent listed above, or the equivalent per-unit rate; (2) for subject merchandise exported by Heze Huayi, but not manufactured by Heze Huayi, the cash deposit rate will continue to be the PRC-wide rate of 285.63 percent; and (3) for subject merchandise manufactured by Heze Huayi, but exported by any party other than Heze Huayi, the cash deposit rate will be the rate applicable to the exporter. These cash deposit requirements will remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
These final results and this notice are issued and published in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
April 12, 2012.
The U.S. Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on saccharin from the People's Republic of China (“PRC”) for the period of review (“POR”) July 1, 2010, through June 30, 2011, covering 12 manufacturers/exporters of subject merchandise from the PRC.
We intend to issue the final results no later than 120 days from the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”).
Paul Stolz, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4474.
On July 1, 2011, the Department published in the
The Department invited comments regarding the CBP data and respondent selection but received none. In addition, the Department issued a no-shipment inquiry to CBP on December 21, 2011, covering the companies located in the PRC and the third-country exporters (except Kingchem).
The product covered by this antidumping duty order is saccharin. Saccharin is defined as a non-nutritive sweetener used in beverages and foods, personal care products such as toothpaste, table top sweeteners, and animal feeds. It is also used in metalworking fluids. There are four primary chemical compositions of saccharin: (1) Sodium saccharin (American Chemical Society Chemical
19 CFR 351.213(d)(1) provides that the Department will rescind an administrative review if the party that requested the review withdraws its request for review within 90 days of the date of publication of the notice of initiation of the requested review, or withdraws it at a later date if the Department determines it is reasonable to extend the time limit for withdrawing the request. The Department initiated this administrative review on August 26, 2011.
Fine Chemical, Changjie Chemical, North Food, and Embaiking Pharmaceutical, all companies located in the PRC, did not submit separate rate applications or certifications to demonstrate their eligibility for separate rate status. As stated in the
CBP data reviewed by the Department do not show any reviewable entries of subject merchandise made by the third-country exporters Escalade, High Trans Corporation, Seicheng Chemical, Yuan Shan, Sin-Ho Trading, Long Hwang Chemicals, and Sun Disc during the POR. There is no information on the record of this proceeding indicating that the third-country exporters made entries of subject merchandise during the POR. Because these companies are located outside of the PRC, and they do not have individual exporter rates, the Department preliminarily determines that their entries of subject merchandise will be assessed at the rate applicable to their PRC suppliers.
If these preliminary results of review and intent to rescind are adopted in the final results, then antidumping duties will be assessed as follows. For all shipments of the subject merchandise by the PRC-wide entity entered, or withdrawn from warehouse, for consumption during the POR we intend to instruct CBP to assess antidumping duties at the
If these partial preliminary results are adopted in the final results, then the following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide entity rate of 329.94 percent; and (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These requirements, when imposed, shall remain in effect until further notice.
Since no calculations were performed for these partial preliminary results, no disclosure is required under 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Any hearing will be held 37 days after the publication of this notice, or the first business day thereafter unless the Department alters the date pursuant to 19 CFR 351.310(d). Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
Unless otherwise notified by the Department, interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with 19 CFR 351.309(c)(1)(ii). As part of the case brief, parties are encouraged to provide a summary of the arguments and a table of authorities cited in accordance with 19 CFR 351.309(c)(2). Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed in accordance with 19 CFR 351.309(d). All briefs must be filed in accordance with the Department's e-filing regulations.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
In response to a request from an interested party, United States Steel Corporation, the Department of Commerce (the Department) initiated an administrative review of the countervailing duty order on seamless carbon and alloy steel standard, line, and pressure pipe from the People's Republic of China. The period of review is November 10, 2010, through December 31, 2010. Based on the timely withdrawal of the request for review submitted by United States Steel Corporation, we are now rescinding this administrative review.
Patricia Tran or Eric Greynolds, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1503 or (202) 482-6071, respectively.
On December 30, 2011, the Department published in the
On March 29, 2012, and amended on April 3, 2012, United States Steel Corporation withdrew its request for an administrative review of the 32 companies.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review if the party that requested the review withdraws its request for review within 90 days of the publication of the notice of initiation of the requested review, or withdraws at a later date if the Department exercises its discretion to extend the time limit for withdrawing the request. United States Steel Corporation withdrew its request within the 90-day deadline. Therefore, we are rescinding the review with respect to all companies.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. Countervailing duties shall be assessed at rates equal to the cash deposit or bonding rate of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
Toni Page, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1398.
On December 10, 2001, the Department of Commerce (Department) published in the
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the party that requested the review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. Petitioners' March 13, 2012, withdrawal was filed within the 90-day period, and no other party requested a review. Therefore, pursuant to 19 CFR 351.213(d)(1), the Department is rescinding this administrative review.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties at the cash deposit rate in effect on the date of entry, for all entries of honey from Argentina during the period January 1, 2011, through December 31, 2011. The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice of rescission of administrative review.
This notice serves as a final reminder to parties subject to the administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).
Notice of Application for an Export Trade Certificate of Review from Panama Poultry Export Quota, Inc.
The Export Trading Company Affairs (“ETCA”) unit, Office of Competition and Economic Analysis, International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review (“Certificate”). This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.
Joseph Flynn, Director, Office of Competition and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private, treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked “privileged” or “confidential business information” will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 7021X, Washington, DC 20230, or transmitted by Email at
PAN-PEQ seeks a Certificate of Review to engage in the Export Trade Activities and Methods of Operation described below in the following Export Trade and Export Markets:
PAN-PEQ plans to export Chicken leg quarters, (or parts of chicken leg quarters, including legs or thighs), fresh, chilled or frozen, seasoned or unseasoned, marinated or not
Chicken leg quarters for which awards will be made will be exported to the Republic of Panama.
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