Food and Nutrition Service
National Agricultural Statistics Service
Antitrust Division
Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Engineers Corps
Navy Department
Pipeline and Hazardous Materials Safety Administration
Federal Energy Regulatory Commission
Southeastern Power Administration
Presidential Documents
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Agency for Healthcare Research and Quality
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Geological Survey
Land Management Bureau
Antitrust Division
Drug Enforcement Administration
Federal Procurement Policy Office
Fiscal Service
National Agricultural Statistics Service
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Alcohol and Tobacco Tax and Trade Bureau
Community Development Financial Institutions Fund
Fiscal Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Board of Governors of the Federal Reserve System (“Board”).
Notification of policy statement.
The Board is issuing this guidance to provide clarity on the manner in which the conformance period would apply to various activities and investments covered by the requirements of section 619 of the Dodd-Frank Act. This guidance is identical to what the Board announced on its public Web site on April 19, 2012.
Effective June 8, 2012.
On February 9, 2011, the Board issued its final rule to implement the provisions of section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”)
As more fully explained in this statement, the Board confirms that banking entities by statute have two years from July 21, 2012, to conform all of their activities and investments to section 619, unless that period is extended by the Board. During the conformance period, banking entities should engage in good-faith planning efforts, appropriate for their activities and investments, to enable them to conform their activities and investments to the requirements of section 619 and final implementing rules by no later than the end of the conformance period. This may include complying with reporting or recordkeeping requirements if such elements are included in the final rules implementing section 619 and the agencies determine such actions are required during the conformance period.
Section 619 of the Dodd-Frank Act added a new section 13 to the Bank Holding Company Act (“BHC Act”) that imposes certain prohibitions and requirements on a banking entity
Section 13(c)(6) of the BHC Act required the Board, acting alone, to adopt rules regarding the conformance periods for activities and investments restricted by section 13.
After adoption by the Board of the Conformance Rule, a number of commenters on the interagency proposed rules to implement section 13 requested advice regarding the period of time a banking entity would have to conform its activities and investments to the requirements of section 13 and the implementing rules and whether certain activities would be prohibited prior to
Section 13 of the BHC Act generally provides that, unless the period for conformance is extended by the Board, a banking entity must conform its activities and investments to the prohibitions and requirements of that section and any final implementing rules no later than 2 years after the statutory effective date of section 13.
As noted in the issuing release for the Conformance Rule and the legislative history of section 13, the conformance period for banking entities is intended to give markets and firms an opportunity to adjust to the prohibitions and requirements of that section and any implementing rules adopted by the agencies.
Under the Conformance Rule, all proprietary trading activity conducted by each banking entity must conform to the prohibitions and requirements of section 13 of the BHC Act and any final implementing rules by no later than the end of the conformance period. Similarly, all activities, investments and transactions with or involving a covered fund, including a covered fund organized and offered or sponsored by the banking entity, must conform to section 13 of the BHC Act and final implementing rules by no later than the end of the relevant conformance period.
During the conformance period, every banking entity that engages in an activity or holds an investment covered by section 13 is expected to engage in good-faith efforts, appropriate for its activities and investments, which will result in the conformance of all of its activities and investments to the requirements of section 13 of the BHC Act by no later than the end of the conformance period. This includes evaluating the extent to which the banking entity is engaged in activities and investments that are covered by section 13 of the BHC Act, as well as developing and implementing a conformance plan that is as specific as possible about how the banking entity will fully conform all of its covered activities and investments with section 13 of the BHC Act and any final implementing rules by July 21, 2014, unless that period is extended by the Board. These good-faith efforts should take account of the statutory provisions in section 13 of the BHC Act as they will apply to the activities and investments of the banking entity at the end of the conformance period as well as any applicable implementing rules adopted in final by the primary financial regulatory agency for the banking entity. Good-faith conformance efforts may also include complying with reporting or recordkeeping requirements if such elements are included in the final rules implementing section 13 of the BHC Act and the agencies determine such actions are required during the conformance period.
Nothing in this guidance restricts in any way the authority of any agency to use its supervisory or other authority to limit any activity the agency determines to be unsafe or unsound or otherwise in violation of law.
By order of the Board of Governors of the Federal Reserve System, June 5, 2012.
Federal Housing Finance Agency.
Final rule.
Section 1108 of the Housing and Economic Recovery Act of 2008 (HERA) amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) to require the Federal Housing Finance Agency (FHFA) to establish prudential standards (Standards) relating to the management and operations of the Federal National Mortgage Association (Fannie Mae), Federal Home Loan Mortgage Corporation (Freddie Mac), and Federal Home Loan Banks (Banks) (collectively, regulated entities). This final rule implements those HERA amendments by providing for the establishment of the Standards in the form of guidelines, which initially are set out in an appendix to the rule. The final rule includes other provisions relating to the possible consequences for a regulated entity that fails to operate in accordance with the Standards.
This final rule is effective on August 7, 2012. For additional
Anthony Cornyn, Senior Associate Director, Office of Offsite Monitoring and Analysis,
Effective July 30, 2008, HERA, Public Law 110–289, 122 Stat. 2654 (2008), created FHFA as an independent agency of the Federal Government and transferred to it the supervisory and oversight responsibilities over the regulated entities formerly vested with the Office of Federal Housing Enterprise Oversight (OFHEO) and the Federal Housing Finance Board (Finance Board). Section 1108 of HERA also added a new section 1313B to the Safety and Soundness Act, which requires the FHFA Director to establish standards that address 10 separate areas relating to the management and operation of the regulated entities, and authorizes the Director to establish the standards by regulation or by guideline. 12 U.S.C. 4513b. Those 10 areas relate to: Adequacy of internal controls and information systems; adequacy and independence of the internal audit systems; management of interest rate risk; management of market risk; adequacy of liquidity and reserves; management of growth in assets and in the investment portfolio; management of investments and acquisition of assets to ensure that they are consistent with the purposes of the Safety and Soundness Act and the regulated entities' authorizing statutes;
Section 1313B(b)(1) addresses the possible consequences for a regulated entity that fails to meet any of the Standards, and provides that the Director “shall require” the regulated entity to submit a corrective plan if the Standards have been adopted by regulation and “may require” the regulated entity to submit a corrective plan if the Standards have been adopted as guidelines. 12 U.S.C. 4513b(b)(1)(A). If a regulated entity is required to submit a corrective plan to FHFA, it must do so within thirty (30) days after the Director determines that it has failed to meet any Standard. That plan must specify the actions that the regulated entity will take to conform its practices to the requirements of the Standards. 12 U.S.C. 4513b(b)(1). FHFA generally must act on such plans within thirty (30) days after receipt. 12 U.S.C. 4513b(b)(1)(C)(ii).
Section 1313B(b)(2) also addresses the possible consequences for a regulated entity that fails to submit an acceptable plan within the required time period or that fails in any material respect to implement a corrective plan that the Director has approved. In those cases, the Director must order the regulated entity to correct the deficiency. 12 U.S.C. 4513b(b)(2)(A). The Director also has the discretionary authority to order further sanctions, including limits on asset growth, increases in capital, or any other action the Director believes will better carry out the purposes of the statute, until the regulated entity meets the Standard. 12 U.S.C. 4513b(b)(2)(B). Although the imposition of those additional sanctions generally is a matter of discretion for the Director, if a regulated entity that has failed to submit or implement a corrective plan also has experienced “extraordinary growth” within the preceding 18 months, the Director is then required to impose at least one of those additional sanctions. The remedial powers that the Director may invoke under the prudential standards provisions are not exclusive, and section 1313B(c) expressly preserves the Director's right to exercise any other supervisory or enforcement authority available under the Safety and Soundness Act. 12 U.S.C. 4513b(c).
On June 20, 2011, FHFA proposed a rule to establish the Standards as guidelines, which were set out in an appendix to the proposed rule.
Section 1313(f) of the Safety and Soundness Act, as amended by HERA, requires the Director, when promulgating regulations relating to the Banks, to consider differences between the Banks and the Enterprises (Fannie Mae and Freddie Mac) with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. In preparing this final rule, the Director considered the differences between the Banks and the Enterprises as they relate to the above factors, and determined that the rule is appropriate.
In developing the proposed rule, FHFA differentiated between the Banks and the Enterprises in defining “extraordinary growth” by excluding Bank advances from the calculation of extraordinary growth. The proposed standards also included provisions relating to market value of equity and par value of capital stock, which applied only to the Banks. Those provisions recognized the Banks' mission of providing liquidity to members through advances, as well as their unique capital structure. As discussed below in Section II.B.2. of this final rule, FHFA has further refined the definition of extraordinary growth in response to the Banks' comments by using a longer-term six calendar quarter period as the basis for measuring such growth. The revised definition should make it less likely that the short-term
FHFA considered the Banks' request for different treatment in other areas as well. The Banks, in their joint comment letter (Joint Bank Letter), cited the importance of advances to the Banks' mission and the history of no credit-default on advances in support of their request to be exempted from § 1236.5(a)(1) of the proposed rule, which allows FHFA, among other things, to prohibit a regulated entity from increasing its average total assets if it fails to submit a corrective plan or fails to comply with an approved corrective plan. The Banks raised that same argument with respect to certain requirements under Standard 9 relating to credit concentration.
In this final rule, FHFA establishes the Standards, which are attached in an Appendix, as guidelines, as is authorized by 12 U.S.C. 4513b(a). By adopting the Standards as guidelines, rather than as regulations, the Director may modify, revoke, or add to any one or more of them at any time by order and without undertaking a notice and comment rulemaking. The final rule also establishes certain procedures related to the Standards, and sets out the processes by which FHFA can notify a regulated entity of its failure to operate in accordance with the Standards and can direct the entity to take corrective action. The final rule also specifies the possible consequences for any regulated entity that fails to operate in accordance with the Standards or otherwise fails to comply with this part.
In adopting the final rule, FHFA considered the four comment letters received in response to the proposed rule. The twelve Banks jointly submitted one comment letter, and individual letters were received from Fannie Mae (Fannie Letter), Freddie Mac (Freddie Letter), and the Mortgage Insurance Companies of America (MICA Letter). FHFA adopted some of the commenters' recommendations, in some instances making changes to the language of several rule provisions and Standards, and in other instances providing clarification in the
In response to certain comments regarding the inclusion within many of the proposed Standards of references to the responsibilities of the boards and management, FHFA has made two principal revisions to the Standards. First, FHFA has created an introductory section to the Standards, entitled “General Responsibilities of the Board of Directors and Senior Management.” Second, FHFA has revised the Standards to remove many of the references to specific obligations of the board and management from the individual standards.
The introductory section does not constitute a separate Standard, and thus does not impose any additional requirement on the regulated entities. Instead, this section is intended to recite, in the context of the regulated entities and the Standards generally, common concepts of corporate governance that would be typical for the board and management of any financial institution. The introductory section also contains a reminder that the specified responsibilities found in the Standards are not a comprehensive listing of the responsibilities of either the boards of directors or senior management, each of whom have additional duties and responsibilities to those described in the Standards. The streamlining of certain principles under the other Standards is designed to simplify them and eliminate repetition. The final rule also makes several clarifying non-substantive changes to the wording of certain principles of the Standards and to the text of §§ 1236.1, 1236.3(b), 1236.4(b), and 1236.5(b) and (c). With those exceptions, the overall approach to establishing the Standards used in the proposed rule remains the same in the final rule.
The following discussion of the comments is divided into two sections. The first section discusses three comments that are general in nature. These comments relate to the definition of extraordinary growth, corporate governance and the role of boards of directors of regulated entities, and potential conflicts between the Standards and existing FHFA regulations, including those of the Finance Board and OFHEO that remain in effect. The second category consists of comments that relate to specific provisions of the proposed rule or Standards. For ease of reference, in discussing the comments on the specific principles that make up each Standard, FHFA refers to each principle using the number given to the principle in the proposed rule. Other than the modifications discussed in this section, FHFA is adopting the rule and Standards as proposed.
The Banks and the Enterprises both believe that the language of several Standards can be read as placing on boards of directors of regulated entities responsibilities that are above and beyond the fiduciary duties typically imposed by existing corporate law. They also believe that the proposed rule may be interpreted in a manner that distorts the conventional distinction between the respective roles of boards of directors and senior management.
In response to these comments, FHFA has modified the Standards in a manner that clarifies the duties of the boards of directors but still preserves the intent of the Standards. As previously noted,
The proposed rule included separate definitions of “extraordinary growth” for the Banks and for the Enterprises.
The Banks argued that, due to the mechanics and time lags in the repayment of advances and redemption of capital stock, short-term quarterly fluctuations in non-advance assets are common and can distort the results of the 7.5 percent test. In support of their contention, the Banks stated that as of the date of their letter, 9 of the 12 Banks would have been considered to be experiencing extraordinary growth, as defined by the proposed rule. The Banks believed that implementing an additional threshold of 20 percent annualized growth over the entire six calendar quarter look-back period would resolve their issue.
The look-back trigger date for the determination of extraordinary growth is the date on which FHFA notifies a regulated entity that it has failed to operate in accordance with the Standards and must submit a corrective plan. In order to accommodate situations where the trigger date occurs in the middle of a calendar quarter, FHFA is interpreting the look-back period to be the six full calendar quarters
FHFA received the following additional comments with respect to the definition of extraordinary growth. The Banks' letter asked that FHFA apply the extraordinary growth test prospectively, such that only asset growth occurring after the effective date of the final rule would be considered.
Applying the extraordinary growth test using only asset growth that would occur after the effective date of the final rule would unduly delay the operation of that portion of the rule for at least 18 months, which FHFA does not believe is necessary given the revisions that it has made to the definition of extraordinary growth with respect to the Banks. FHFA also believes that modifying the definition of extraordinary growth with respect to the Enterprises to incorporate the portfolio limit covenant of the Senior Stock Purchase agreement is not appropriate. Under that covenant, the Enterprises are required to reduce their “mortgage-related investments portfolios” by 10 percent per year until reaching a specified limit, and FHFA does not believe that such a provision is appropriate for measuring growth of the Enterprises. With respect to limiting the application of extraordinary growth to those entities that are not in the highest capital classification, FHFA is not persuaded that the standards used for depository institutions are necessarily well-suited to the regulated entities, and the Safety and Soundness Act does not
The Banks believed that certain Standards conflict or overlap with other existing regulations, particularly the remaining regulations of the Finance Board.
The Banks have requested that FHFA provide the opportunity for notice and comment on any future changes to the Standards and afford regulated entities at least a 90-day grace period to conform with such changes.
The Banks have requested that in making any finding of a failure to meet a Standard pursuant to § 1236.4(a), FHFA identify the relevant Standard and the basis for the determination. The Banks' letter also requests that FHFA create a process for a regulated entity to contest a finding of failure to meet a Standard, and a safe-harbor provision for a good faith effort to meet a Standard.
Section 1236.4(c) addresses the contents and filing requirements relating to a corrective plan. One provision of the proposed rule implemented a statutory provision, which provides that a regulated entity that is undercapitalized and is required to submit a capital restoration plan may submit the corrective plan required under these regulations as part of the capital restoration plan. 12 U.S.C. 4513b(b)(1)(B). Section 1236.4(c)(2)(ii) of the proposed rule carried over the substance of the statutory provision, providing that a regulated entity that is required to file a capital restoration plan may, with the permission of FHFA, submit a corrective plan as part of the capital restoration plan. The proposed rule also expanded on the statutory authorization by allowing a regulated entity to submit its corrective plan as part of its response to any cease-and-desist order, agreement with FHFA, or a report of examination or inspection. The Banks have requested that FHFA remove the requirement for obtaining FHFA permission in order for a regulated entity to file its corrective plan as part of some other submission.
Section 1236.4(e) addresses the period of time within which FHFA must act in response to the submission of a corrective plan. As a general matter, within thirty (30) calendar days of its receipt of a corrective plan, FHFA must notify the regulated entity of its decision on the plan (
The underlying statute sets forth certain actions that FHFA may take if a regulated entity has failed to timely submit an acceptable corrective plan or has failed to implement or otherwise comply with an approved corrective plan in any material respect. At a minimum, the Director must order the regulated entity to correct that deficiency. The Director also has the discretion under the statute to place limits on asset growth, require increases to capital, limit dividends and stock redemptions or repurchases, or require a minimum level of retained earnings, or take any other action that the Director deems would better carry out the purposes of the prudential standards statutory regime. 12 U.S.C. 4513b(b)(2)(B). The statute further provides that, if a regulated entity that has failed to submit or implement a corrective plan also has experienced “extraordinary growth” over the 18-month period preceding its failure to meet the Standards, the Director must impose at least one of the remedies listed above. Section 1236.5(a) and (b) of the proposed rule largely carried over those statutory requirements into the final rule.
Freddie Mac's letter requests that materiality be factored into any determination of non-compliance with a corrective plan, and seeks clarification that any other remedy that the Director decides to impose must be deemed to be more effective than the five remedies listed in § 1236.5(a).
Under § 1236.5(c)(1), FHFA generally will notify a regulated entity that has failed to submit or implement a corrective plan of its intent to issue an order requiring the regulated entity to take corrective action. However, if the circumstances so require, § 1236.5(c)(4) provides that FHFA need not provide advance notice and may instead require a regulated entity immediately to take or refrain from taking actions to correct its failure to meet one or more of the Standards. Within fourteen (14) calendar days of the issuance of such an immediately effective order, unless otherwise specified by FHFA, a regulated entity may appeal the order in writing. FHFA will act on an appeal within sixty (60) days, during which time the order will remain in effect unless FHFA stays its effectiveness.
The Banks have requested that FHFA clarify the circumstances under which the Director may invoke the provision in § 1236.5(c)(4) and issue an immediately effective order. The Banks also believe that the sixty (60) days granted to FHFA to act on an appeal is too lengthy, especially when compared to the fourteen (14) days granted to a regulated entity to appeal an immediately effective order.
The Banks and Freddie Mac both requested revisions to Standard 1,
Freddie Mac's letter states that proposed Principle 3, which requires the board of directors of a regulated entity to approve the entity's organizational structure, is too vague and overly burdensome. Freddie suggests either eliminating the principle or limiting its scope.
In their letter, the Banks argue that the requirement to have a formal self-assessment process to monitor internal controls under proposed Principle 12 is redundant in light of the fact that the Banks must comply with Sarbanes-Oxley Act requirements relating to internal controls.
The Banks have requested that proposed Principle 5, relating to internal audit systems, use the term “testing” instead of “monitoring” because the Banks believe that audits are designed to test and not provide ongoing monitoring.
Fannie Mae believes that proposed Principle 1, relating to market risk exposure, is redundant because proposed Principle 7, which requires the board of directors or a committee of the board to review risk exposures periodically, and proposed Principle 6 under Standard 8, which requires, among other things, that the board of directors and senior management be provided with accurate and timely reports on market risk exposure, sufficiently address the issue of market risk.
Proposed Principle 11 requires senior management to ensure that a regulated entity's policies and procedures identify remedial actions to be taken in the event that market risk limits are violated. The Banks argue that a particular future remedial action to be taken in response to a violation of the market risk limitations cannot be predetermined, and thus should not be required to be stated in their policies and procedures.
Proposed Principle 3 requires that a regulated entity's market risk
Proposed Principle 1 of this Standard requires a regulated entity's board to approve, at least annually, all major strategies and policies governing liquidity and reserves. The Banks' letter notes that Finance Board regulations § 917.3(a)(2) and 917.3(b)(3)(iii) require the boards of directors of the Banks to review the risk management policy annually and re-adopt such policy at least every three years, which the Banks view as a direct conflict.
Proposed Principle 2 generally requires the board of directors to establish policies governing asset and investment growth, including limits on growth of mortgage loans and mortgage-backed securities. The Banks asked that FHFA revise this provision to make clear that it is not intended to apply to the growth of advances or letters of credits by the Banks.
Proposed Standard 7 implements a statutory requirement that FHFA adopt Standards that relate to a regulated entity's “investments and acquisitions of assets” to ensure that they are consistent with the regulated entity's chartering statute and the Safety and Soundness Act. Several principles under Standard 7 utilize the terms “investments” and “other assets,” neither of which is defined, and Freddie Mac has asked that FHFA clarify the meaning of “other assets.”
The final rule revises proposed Principle 11 (renumbered as final Principle 5) to state that the chief risk officer should report directly to both the chief executive officer and the risk committee of the board of directors. This change is being made to conform proposed Principle 11 to the recommended practices issued by other financial regulators.
In light of a pending joint rulemaking on derivative instruments by the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”), the Banks' letter requests that FHFA suspend proposed Principle 2, relating to policies and procedures for the use of derivative instruments, until the completion of the CFTC and SEC rulemaking.
Proposed Principle 4
The Banks again cite the historical absence of credit losses on advances to argue that proposed Principle 5
MICA's letter suggests that FHFA expand proposed Principle 8 (renumbered as final Principle 6) to not only require that regulated entities have procedures and policies in place to make informed credit decisions at the outset, but to also require that such procedures are employed on an ongoing basis and include the use of back-testing to ensure that the initial credit decisions are validated and to reveal any need for further improvement in credit-risk protocols.
Proposed Principle 11 (renumbered as final Principle 9) requires a regulated entity to have a system of independent, ongoing credit review, including stress testing and scenario analysis. The Banks' letter seeks clarification of the scope of the term “independent ongoing credit review.”
In response to a comment from the Banks, FHFA is changing the term “records management plan” to “record retention program” in proposed Principle 3
As discussed previously, the final version of the Standards includes an introductory section dealing with the general responsibilities of the boards and management of the regulated entities. That new section consists of the following three parts: Responsibilities of the board of directors, responsibilities of senior management, and joint responsibilities of the board and senior management. Each section is compiled from concepts that had been included as part of the Principles under most of the 10 proposed Standards. FHFA believes that grouping these generally applicable board of directors and senior management responsibilities in an introductory section, rather than dispersing them over 10 separate Standards, improves the presentation and clarity of the Standards. As stated previously, the introductory section is intended to provide an overview of what FHFA believes to be typical director and officer responsibilities in the context of financial institutions generally, as well as in the context of the Standards.
Items 1 through 4 of the general responsibilities section address responsibilities of boards of directors. Item 1 requires the board of directors, with respect to each subject matter addressed by each Standard, to adopt appropriate business strategies, policies, and procedures. It also requires boards to review such strategies, policies and procedures periodically and approve all major strategies, policies, and procedures annually. The next item addresses the board's responsibility in overseeing management and ensuring that management includes qualified personnel. Items 3 and 4 require boards to remain informed about the operations of a regulated entity and about specific risks and exposures, including market, credit, and counterparty risk. These items also address the need to establish risk tolerances and remedy any violation of those risk limits.
Items 5 through 8 of the general responsibilities section address the responsibilities of senior management of the regulated entities. Item 5 requires senior management, with respect to each subject matter addressed by each Standard, to develop the policies, procedures, and practices that are necessary to implement the business strategies and policies adopted by the board of directors. Senior management should also ensure that the policies, procedures, and practices are followed by all personnel and that such personnel are competent and appropriately trained. Item 6 requires senior management to ensure that the regulated entity has adequate resources, systems, and controls to effectively execute the entity's business strategies, policies and procedures, including operating consistently with each of the Standards. The last two items, 7 and 8, address the need for senior management to keep the board of directors informed through periodic reports and discussions.
Items 9 and 10 (formerly Principle 13 of proposed Standard 1 and Principle 7 of proposed Standard 8, respectively) of the general responsibilities section require the board of directors and senior management to conduct themselves in a manner that promotes high ethical standards and a culture of compliance throughout the organization. The board of directors and senior management are also required to ensure that the regulated entity's overall risk profile is aligned with its mission objectives.
The final rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The final rule applies only to the Banks and the Enterprises, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Federal home loan banks, Government-sponsored enterprises, Reporting and recordkeeping requirements.
For the reasons stated in the
12 U.S.C. 4511, 4513(a) and (f), 4513b, and 4526.
This part establishes the prudential management and operations standards that are required by 12 U.S.C. 4513b and the processes by which FHFA can notify a regulated entity of its failure to operate in accordance with the standards and can direct the entity to take corrective action. This part further specifies the possible consequences for any regulated entity that fails to operate in accordance with the standards or otherwise fails to comply with this part.
Unless otherwise indicated, terms used in this part have the meanings that they have in the Federal Housing Enterprises Financial Safety and Soundness Act, 12 U.S.C. 4501
(i) With respect to a Bank, growth of non-advance assets in excess of 30 percent over the six calendar quarter period preceding the date on which FHFA notified the Bank that it was required to submit a corrective plan; and
(ii) With respect to an Enterprise, quarterly non-annualized growth of assets in excess of 7.5 percent in any calendar quarter during the six calendar quarter period preceding the date on which FHFA notified the Enterprise that it was required to submit a corrective plan.
(2) For purposes of calculating an increase in assets, assets acquired through merger or acquisition approved by FHFA are not to be included.
(a) The Standards constitute the prudential management and operations standards required by 12 U.S.C. 4513b.
(b) The Standards have been adopted as guidelines, as authorized by 12 U.S.C. 4513b(a), and the Director may modify, revoke, or add to the Standards, or any one or more of them, at any time by order or notice.
(c) In the case of a direct conflict between a Standard and an FHFA regulation, when it is not possible to comply with both the Standard and the FHFA regulation, the regulation shall control.
(d) Failure to meet any Standard may constitute an unsafe and unsound practice for purposes of the enforcement provisions of 12 U.S.C. chapter 46, subchapter III.
(a)
(b)
(c)
(2)
(ii)
(d)
(e)
(a)
(1) Prohibit the regulated entity from increasing its average total assets, as defined in 12 U.S.C. 4516(b)(4), for any calendar quarter over its average total assets for the preceding calendar quarter, or may otherwise restrict the rate at which the average total assets of the regulated entity may increase from one calendar quarter to another;
(2) Prohibit the regulated entity from paying dividends;
(3) Prohibit the regulated entity from redeeming or repurchasing capital stock;
(4) Require the regulated entity to maintain or increase its level of retained earnings;
(5) Require an Enterprise to increase its ratio of core capital to assets, or require a Bank to increase its ratio of total capital, as defined in 12 U.S.C. 1426(a)(5), to assets; or
(6) Require the regulated entity to take any other action that the Director determines will better carry out the purposes of the statute by bringing the regulated entity into conformance with the Standards.
(b)
(c)
(i) A statement that the regulated entity has failed to submit a corrective plan under § 1236.4, or has not implemented or otherwise has not complied in any material respect with an approved plan;
(ii) A description of any sanctions that FHFA intends to impose and, in the case of the mandatory sanctions required by 12 U.S.C. 4513b(b)(3), a statement that FHFA believes that the regulated entity has experienced extraordinary growth; and
(iii) The proposed date when any sanctions would become effective or the proposed date for completion of any required actions.
(2)
(i) An explanation why the regulated entity believes that the action proposed by FHFA is not an appropriate exercise of discretion;
(ii) Any recommended modification of the proposed order; and
(iii) Any other relevant information, mitigating circumstances, documentation or other evidence in support of the position of the regulated entity regarding the proposed order.
(3)
(4)
(d)
(e)
(1) Issue the order as proposed or in modified form;
(2) Determine not to issue the order and instead issue a different order; or
(3) Seek additional information or clarification of the response from the regulated entity, or any other relevant source.
The following provisions address the general responsibilities of the boards of directors and senior management of the regulated entities as they relate to the matters addressed by each of the Standards. The descriptions are not a comprehensive listing of the responsibilities of either the boards or senior management, each of whom have additional duties and responsibilities to those described in these Standards.
1. With respect to the subject matter addressed by each Standard, the board of directors is responsible for adopting business strategies, policies, and procedures that are appropriate for the particular subject matter. The board should review all such strategies, policies, and procedures periodically, and should review and approve all major strategies and policies at least annually, and make any revisions that are necessary to ensure that they remain consistent with the entity's overall business plan.
2. The board of directors is responsible for overseeing management of the regulated entity, which includes ensuring that management includes personnel who are appropriately trained and competent to oversee the operation of the regulated entity as it relates to the functions and requirements addressed by each Standard, and that management implements the policies and procedures set forth by the board.
3. The board of directors is responsible for remaining informed about the operations and condition of the regulated entity, including operating consistently with the Standards, and senior management's implementation of the strategies, policies and procedures established by the board of directors.
4. The board of directors must remain sufficiently informed about the nature and level of the regulated entity's overall risk exposures, including market, credit, and counterparty risk, so that it can understand the possible short- and long-term effects of those exposures on the financial health of the regulated entity, including the possible short- and long-term consequences to earnings, liquidity, and economic value. The board of directors should: establish the regulated entity's risk tolerances and should provide management with clear guidance regarding the level of acceptable risks; review the regulated entity's entire market risk management framework, including policies and entity-wide risk limits at least annually; oversee the adequacy of the actions taken by senior management to identify, measure, manage, and control the regulated entity's risk exposures; and ensure that management takes appropriate corrective measures whenever market risk limit violations or breaches occur.
5. With respect to the subject matter addressed by each Standard, senior management is responsible for developing the policies, procedures and practices that are necessary to implement the business strategies and policies adopted by the board of directors. Senior management should ensure that such items are clearly written, sufficiently detailed, and are followed by all personnel. Senior management also should ensure that the regulated entity has personnel who are appropriately trained and competent to carry out their respective functions and that all delegated responsibilities are performed.
6. Senior management should ensure that the regulated entity has adequate resources, systems and controls available to execute effectively the entity's business strategies, policies and procedures, including operating consistently with each of the Standards.
7. Senior management should provide the board of directors with periodic reports relating to the regulated entity's condition and performance, including the subject matter addressed by each of the Standards, that are sufficiently detailed to allow the board of directors to remain fully informed about the business of the regulated entity.
8. Senior management should regularly review and discuss with the board of directors information regarding the regulated entity's risk exposures that is sufficient in detail and timeliness to permit the board of directors to understand and assess the performance of management in identifying and managing the various risks to which the regulated entity is exposed.
9. The board of directors and senior management should conduct themselves in such a manner as to promote high ethical standards and a culture of compliance throughout the organization.
10. The board of directors and senior management should ensure that the regulated entity's overall risk profile is aligned with its mission objectives.
The following provisions constitute the prudential management and operations standards established pursuant to 12 U.S.C. 4513b(a).
1. Regarding internal controls and information systems, the board of directors of each regulated entity should adopt appropriate policies, ensure personnel are appropriately trained and competent, approve and periodically review overall business strategies, approve the organizational structure, and assess the adequacy of senior management's oversight of this function.
2. Regarding internal controls and information systems, senior management should implement strategies and policies approved by the board of directors, establish appropriate policies, monitor the adequacy and effectiveness of this function, and ensure personnel are appropriately trained and competent. The organizational structure should clearly assign responsibility, authority, and reporting relationships.
3. Regarding internal controls and information systems, both the board of directors and senior management should promote high ethical standards, create a culture that emphasizes the importance of this function, and promptly address any issues in need of remediation.
4. The regulated entity should have an adequate and effective system of internal controls, which should include a board approved organizational structure that clearly assigns responsibilities, authority, and reporting relationships, and establishes an appropriate segregation of duties that ensures that personnel are not assigned conflicting responsibilities.
5. The regulated entity should establish appropriate internal control policies and should monitor the adequacy and effectiveness of its internal controls and information systems on an ongoing basis through a formal self-assessment process.
6. The regulated entity should have an organizational culture that emphasizes and demonstrates to personnel at all levels the importance of internal controls.
7. The regulated entity should address promptly any violations, findings, weaknesses, deficiencies, and other issues in need of remediation relating to the internal control systems.
8. A regulated entity should have an effective risk assessment process that ensures that management recognizes and continually assesses all material risks, including credit risk, market risk, interest rate risk, liquidity risk, and operational risk.
9. A regulated entity should have an effective internal control system that defines control activities at every business level.
10. A regulated entity's control activities should include:
a. Board of directors and senior management reviews of progress toward goals and objectives;
b. Appropriate activity controls for each business unit;
c. Physical controls to protect property and other assets and limit access to property and systems;
d. Procedures for monitoring compliance with exposure limits and follow-up on non-compliance;
e. A system of approvals and authorizations for transactions over certain limits; and
f. A system for verification and reconciliation of transactions.
11. A regulated entity should have information systems that provide relevant, accurate and timely information and data.
12. A regulated entity should have secure information systems that are supported by adequate contingency arrangements.
13. A regulated entity should have effective channels of communication to ensure that all personnel understand and adhere to policies and procedures affecting their duties and responsibilities.
14. A regulated entity should monitor the overall effectiveness of its internal controls and key risks on an ongoing basis and ensure that business units and internal and external audit conduct periodic evaluations.
15. Internal control deficiencies should be reported to senior management and the board of directors on a timely basis and addressed promptly.
16. A regulated entity should comply with all applicable laws, regulations, and supervisory guidance (
1. A regulated entity's board of directors should have an audit committee that exercises proper oversight and adopts appropriate policies and procedures designed to ensure the independence of the internal audit function. The audit committee should ensure that the internal audit department includes personnel who are appropriately trained and competent to oversee the internal audit function.
2. The board of directors should review and approve the audit committee charter at least every three years.
3. The audit committee of the board of directors is responsible for monitoring and evaluating the effectiveness of the regulated entity's internal audit function.
4. Issues reported by the internal audit department to the audit committee should be promptly addressed and satisfactorily resolved.
5. A regulated entity should have an internal audit function that provides for adequate testing of the system of internal controls.
6. A regulated entity should have an independent and objective internal audit department that reports directly to the audit committee of the board of directors.
7. A regulated entity's internal audit department should be adequately staffed with properly trained and competent personnel.
8. The internal audit department should conduct risk-based audits.
9. The internal audit department should conduct adequate testing and review of internal control and information systems.
10. The internal audit department should determine whether violations, findings, weaknesses and other issues reported by regulators, external auditors, and others have been promptly addressed.
11. A regulated entity should comply with applicable laws, regulations, and supervisory guidance (
1. Regarding the overall management of market risk exposure, the board of directors should remain sufficiently informed about the nature and level of the regulated entity's market risk exposures. At least annually, the board should review the entire market risk framework, including policies and risk limits, and provide an assessment of compliance.
2. Regarding the policies, practices and procedures surrounding the management of market risk, the board of directors should approve all major strategies and policies relating to the management of market risk, ensure all major strategies and policies are consistent with the overall business plan, establish and communicate a market risk tolerance, and ensure appropriate corrective measures are taken when market risk limit violations or breaches occur.
3. The board, or a board appointed committee, should oversee the adequacy of actions taken by senior management to identify, measure, manage, and control market risk exposures, ensure market risk policies establish lines of authority and responsibility, and review risk exposures on a periodic basis.
4. Regarding the overall management of market risk exposure, senior management should provide sufficient and timely information to the board of directors, ensure personnel are appropriately trained and competent, ensure adequate systems and resources are available to manage and control market risk, report any breaches to the board of directors (or the appropriate board committee), and take appropriate remedial action.
5. Regarding the policies, practices, and procedures surrounding market risk exposure, senior management should ensure market risk policies and procedures are clearly written, sufficiently detailed, and followed. Approved policies and procedures should include clear market risk limits and lines of authority for managing market risk.
6. A regulated entity should have a clearly defined and well-documented strategy for managing market risk, which must be consistent with its overall business plan, must enable the regulated entity to identify, manage, monitor, and control the regulated entity's risk exposures on a business unit and an enterprise-wide basis, and must ensure that the lines of authority and responsibility for managing market risk and monitoring market risk limits are clearly identified. The strategy should specify a target account, or target accounts, for managing market risk (
7. Management should ensure that the board of directors is made aware of the advantages and disadvantages of the regulated entity's chosen market risk management strategy, as well as those of alternative strategies, so that the board of directors can make an informed judgment about the relative efficacy of the different strategies.
8. A Bank's strategy for managing market risk should take into account the importance of maintaining the market value of equity of member stock commensurate with the par value of that stock so that the Bank is able to redeem and repurchase member stock at par value.
9. A regulated entity should comply with all applicable laws, regulations, and supervisory guidance, (
1. A regulated entity should have a risk measurement system (a model or models) that capture(s) all material sources of market risk and provide(s) meaningful and timely measures of the regulated entity's risk exposures, as well as personnel who are appropriately trained and competent to operate and oversee the risk measurement system.
2. The risk measurement system should be capable of estimating the effect of changes in interest rates and other key risk factors on the regulated entity's earnings and market value of equity over a range of scenarios.
3. The measurement system should be capable of valuing all financial assets and liabilities in the regulated entity's portfolio.
4. The measurement system should address all material sources of market risk including repricing risk, yield curve risk, basis risk, and options risk.
5. Management should ensure the integrity and timeliness of the data inputs used to measure the regulated entity's market risk exposures, and should ensure that assumptions and parameters are reasonable and properly documented.
6. The measurement system's methodologies, assumptions, and parameters should be thoroughly documented, understood by management, and reviewed on a regular basis.
7. A regulated entity's market risk model should be upgraded periodically to incorporate advances in risk modeling technology.
8. A regulated entity should have a documented approval process for model changes that requires model changes to be authorized by a party independent of the party making the change.
9. A regulated entity should ensure that its models are independently validated on a regular basis.
10. Risk limits should be consistent with the regulated entity's strategy for managing interest rate risk and should take into account the financial condition of the regulated entity, including its capital position.
11. Risk limits should address the potential impact of changes in market interest rates on net interest income, net income, and the regulated entity's market value of equity.
12. A regulated entity should conduct stress tests on a regular basis for a variety of institution-specific and market-wide stress scenarios to identify potential vulnerabilities and to ensure that exposures are consistent with the regulated entity's tolerance for risk.
13. A regulated entity should use stress test outcomes to adjust its market risk management strategies, policies, and positions and to develop effective contingency plans.
14. Special consideration should be given to ensuring that complex financial instruments, including instruments with complex option features, are properly valued under stress scenarios and that the risks associated with options exposures are properly understood.
15. Management should ensure that the regulated entity's board of directors or a committee thereof considers the results of stress tests when establishing and reviewing its strategies, policies, and limits for managing and controlling interest rate risk.
16. The board of directors and senior management should review periodically the design of stress tests to ensure that they encompass the kinds of market conditions under which the regulated entity's positions and strategies would be most vulnerable.
17. A regulated entity should have an adequate management information system for reporting market risk exposures.
18. The board of directors, senior management, and the appropriate line managers should be provided with regular, accurate, informative, and timely market risk reports.
19. A regulated entity should comply with all applicable laws, regulations, and supervisory guidance (
1. Regarding the adequacy and maintenance of liquidity and reserves, the board of directors should review (at least annually) all major strategies and policies governing this area, approve appropriate revisions to such strategies and policies, and ensure senior management are appropriately trained to effectively manage liquidity.
2. Regarding the adequacy and maintenance of liquidity and reserves, senior management should develop strategies, policies, and practices to manage liquidity risk, ensure personnel are appropriately trained and competent, and provide the board of directors with periodic reports on the regulated entity's liquidity position.
3. A regulated entity should establish a liquidity management framework that ensures it maintains sufficient liquidity to withstand a range of stressful events.
4. A regulated entity should articulate a liquidity risk tolerance that is appropriate for its business strategy and its mission goals and objectives.
5. A regulated entity should have a sound process for identifying, measuring, monitoring, controlling, and reporting its liquidity position and its liquidity risk exposures.
6. A regulated entity should establish a funding strategy that provides effective diversification in the sources and tenor of funding.
7. A regulated entity should conduct stress tests on a regular basis for a variety of institution-specific and market-wide stress scenarios to identify sources of potential liquidity strain and to ensure that current exposures remain in accordance with each regulated entity's established liquidity risk tolerance.
8. A regulated entity should use stress test outcomes to adjust its liquidity management strategies, policies, and positions and to develop effective contingency plans.
9. A regulated entity should have a formal contingency funding plan that clearly sets out the strategies for addressing liquidity shortfalls in emergencies. Where practical, contingent funding sources should be tested or drawn on periodically to assess their reliability and operational soundness.
10. A regulated entity should maintain adequate reserves of liquid assets, including adequate reserves of unencumbered, marketable securities that can be liquidated to meet unexpected needs.
11. A regulated entity should comply with all applicable laws, regulations, and supervisory guidance (
1. Regarding the management of asset and investment portfolio growth, the board of directors is responsible for overseeing the management of growth in these areas, ensuring senior management are appropriately trained and competent, establishing policies governing the regulated entity's assets and investment growth, with prudential limits on the growth of mortgages and mortgage-backed securities, and reviewing policies at least annually.
2. Regarding the management of asset and investment portfolio growth, senior management should adhere to board-approved policies governing growth in these areas, and ensure personnel are appropriately trained and competent to manage the growth.
3. A regulated entity should manage its asset growth and investment growth in a prudent manner that is consistent with the regulated entity's business strategy, board-approved policies, risk tolerances, and safe and sound operations, and should establish prudential limits on the growth of its portfolios of mortgage loans and mortgage backed securities.
4. A regulated entity should manage asset growth and investment growth in a way that is compatible with mission goals and objectives.
5. A regulated entity should manage investments and acquisition of assets in a way that complies with all applicable laws, regulations, and supervisory guidance (
1. The board of directors is responsible for overseeing the regulated entity's investments and acquisition of other assets, ensuring senior management are appropriately trained and competent, and establishing, approving and periodically reviewing policies and procedures governing investments and acquisitions of other assets.
2. A regulated entity should have a board-approved investment policy that establishes clear and explicit guidelines that are appropriate to the regulated entity's mission and objectives. The investment policy should establish the regulated entity's investment objectives, risk tolerances, investment constraints, and policies and procedures for selecting investments.
3. A regulated entity should have a board-approved policy governing acquisitions of major categories of assets other than investments. The policy should establish clear and explicit guidelines for asset acquisitions that are appropriate to the regulated entity's mission and objectives.
4. A regulated entity should manage investments and acquisitions of assets prudently and in a manner that is consistent with mission goals and objectives.
5. Each Bank's investment policies and acquisition of assets should take into account the importance of maintaining the market value of member stock commensurate with the par value of that stock so that the Bank is able to redeem and repurchase member stock at par value at all times.
6. A regulated entity should manage investments and acquisitions of assets in a way that complies with all applicable laws, regulations, and supervisory guidance (
1. Regarding overall risk management processes, the board of directors is responsible for overseeing the process, ensuring senior management are appropriately trained and competent, ensuring processes are in place to identify, manage, monitor and control risk exposures (this function may be delegated to a board appointed committee), approving all major risk limits, and ensuring incentive compensation measures for senior management capture a full range of risks.
2. Regarding overall risk management processes, the board of directors and senior management should establish and sustain a culture that promotes effective risk management. This culture includes timely, accurate and informative risk reports, alignment of the regulated entity's overall risk profile with its mission objectives, and the annual review of comprehensive self-assessments of material risks.
3. A regulated entity should have an independent risk management function, or unit, with responsibility for risk measurement and risk monitoring, including monitoring and enforcement of risk limits.
4. The chief risk officer should head the risk management function.
5. The chief risk officer should report directly to the chief executive officer and the risk committee of the board of directors.
6. The risk management function should have adequate resources, including a well-trained and capable staff.
7. A regulated entity should measure, monitor, and control its overall risk exposures, reviewing market, credit, liquidity, and operational risk exposures on both a business unit (or business segment) and enterprise-wide basis.
8. A regulated entity should have the risk management systems to generate, at an appropriate frequency, the information needed to manage risk. Such systems should include systems for market, credit, operational, and liquidity risk analysis, asset and liability management, regulatory reporting, and performance measurement.
9. A regulated entity should have a comprehensive set of risk limits and monitoring procedures to ensure that risk exposures remain within established risk limits, and a mechanism for reporting violations and breaches of risk limits to senior management and the board of directors.
10. A regulated entity should ensure that it has sufficient controls around risk measurement models to ensure the completeness, accuracy, and timeliness of risk information.
11. A regulated entity should have adequate and well-tested disaster recovery and business resumption plans for all major
12. A regulated entity should comply with all applicable laws, regulations, and supervisory guidance (
1. Regarding the management of credit and counterparty risk, the board of directors and senior management are responsible for ensuring that the regulated entity has appropriate policies, procedures, and systems that cover all aspects of credit administration, including credit pricing, underwriting, credit limits, collateral standards, and collateral valuation procedures. This should also include derivatives and the use of clearing houses. They are also responsible for ensuring personnel are appropriately trained, competent, and equipped with the necessary tools, procedures and systems to assess risk.
2. Senior management should provide the board of directors with regular briefings and reports on credit exposures.
3. A regulated entity should have policies that limit concentrations of credit risk and systems to identify concentrations of credit risk.
4. A regulated entity should establish prudential limits to restrict exposures to a single counterparty that are appropriate to its business model.
5. A regulated entity should establish prudential limits to restrict exposures to groups of related counterparties that are appropriate to its business model.
6. A regulated entity should have policies, procedures, and systems for evaluating credit risk that will enable it to make informed credit decisions.
7. A regulated entity should have policies, procedures, and systems for evaluating credit risk that will enable it to ensure that claims are legally enforceable.
8. A regulated entity should have policies and procedures for addressing problem credits.
9. A regulated entity should have an ongoing credit review program that includes stress testing and scenario analysis.
10. A regulated entity should manage credit and counterparty risk in a way that complies with applicable laws, regulations, and supervisory guidance (
1. A regulated entity should maintain financial records in compliance with Generally Accepted Accounting Principles (GAAP), FHFA guidelines, and applicable laws and regulations.
2. A regulated entity should ensure that assets are safeguarded and financial and operational information is timely and reliable.
3. A regulated entity should have a records retention program consistent with laws and corporate policies, including accounting policies, as well as personnel that are appropriately trained and competent to oversee and implement the records management plan.
4. A regulated entity, with oversight from the board of directors, should conduct a review and approval of the records retention program and records retention schedule for all types of records at least once every two years.
5. A regulated entity should ensure that reporting errors are detected and corrected in a timely manner.
6. A regulated entity should comply with all applicable laws, regulations, and supervisory guidance (
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This document adopts as a final rule, with an additional technical correction, proposed amendments to the Customs and Border Protection (CBP) regulations regarding customs broker recordkeeping requirements as they pertain to the location and method of record retention. The amendments permit a licensed customs broker, under prescribed conditions, to store records relating to his or her customs transactions at any location within the customs territory of the United States. The amendments also remove the requirement, as it currently applies to brokers who maintain separate electronic records, that certain entry records must be retained in their original format for the 120-day period after the release or conditional release of imported merchandise. These changes maximize the use of available technologies and serve to conform CBP's recordkeeping requirements to reflect modern business practices without compromising the agency's ability to monitor and enforce recordkeeping compliance.
Effective July 9, 2012.
Anita Harris, Broker Compliance Branch, Trade Policy and Programs, Office of International Trade, Customs and Border Protection, 202–863–6069.
On March 23, 2010, U.S. Customs and Border Protection (CBP) published in the
CBP solicited comments on the proposed rulemaking.
Eleven commenters responded to the solicitation of public comment in the proposed rule. Eight commenters expressed support for the proposed rulemaking, noting in particular that the proposed amendments serve to maximize the use of available technologies, increase efficiency and reduce the cost of storing records. Several of these eight commenters included additional suggestions.
A description of the comments received, together with CBP's analyses, is set forth below.
• The word “broker” should be removed from 19 CFR 111.23(a) in that there is no such thing as a “broker district.”
• Section 163.5(b)(3) has been modified to provide that changes to alternative storage procedures must be approved by Regulatory Audit in Charlotte, North Carolina. However, §§ 111.23(b)(2), 163.5(b)(1), 163.12(b)(2) and 163.12(c)(1) still require that approval be sought from Regulatory Audit in Miami. These locations should be harmonized.
• Several references to “Customs” throughout the cited sections should be changed to “CBP.”
The regulatory provisions cited by the commenter, in fact, currently reflect the Regulatory Audit office located in Charlotte, N.C., and do not need to be amended.
When CBP proposes to amend a regulatory provision, it endeavors to change all outdated references in the section to “Customs” and replace it with either “CBP” or “customs,” as appropriate. The proposed rulemaking omitted one such reference in § 163.5(b)(2)(i), and this document corrects such omission.
After analysis of the comments and further review of the matter, CBP has determined to adopt as final, with the technical change noted above in § 163.5(b)(2)(i), and a clarification, the proposed rule published in the
Because these amendments liberalize broker recordkeeping requirements and
The information collections contained in this rule have been previously submitted and approved by the Office of Management and Budget (OMB) and assigned OMB control numbers 1651–0076 and 1651–0034. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.
This document is being issued in accordance with 19 CFR 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his or her delegate) to approve regulations related to certain customs revenue functions.
Administrative practice and procedure, Brokers, Customs duties and inspection, Licensing, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Customs duties and inspection, Penalties, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, parts 111 and 163 of title 19 of the CFR (19 CFR parts 111 and 163) are amended as set forth below.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 1641.
(a)
(b)
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
The revisions read as follows:
(b) * * *
(2) * * *
(iii) Except in the case of packing lists (
(5)
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing temporary special local regulations on the navigable waters of Niantic Bay, Long Island Sound, the Thames River and New London Harbor, New London, Connecticut for OPSAIL 2012 Connecticut (CT) activities. This action is necessary to provide for the safety of life on navigable waters during OPSAIL 2012 CT. This action will restrict vessel traffic in portions of Niantic Bay, Long Island Sound, the Thames River, and New London Harbor unless authorized by the Captain of the Port (COTP) Sector Long Island Sound (SLIS).
This rule is effective from 6 a.m. on July 6, 2012 to 5 p.m. on July 7, 2012.
This rule will be enforced during the following dates and times:
(1) Area 1, from 6 a.m. July 6, until 5 p.m. on July 7, 2012.
(2) Areas 3 and 4, from 7:30 a.m. until 5 p.m. on July 7, 2012.
(3) Areas 2 and 5, from 10 a.m. until 5 p.m. on July 7, 2012.
Documents mentioned in this preamble are part of docket [USCG–2012–0066]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Joseph Graun, Prevention Department, U.S. Coast Guard Sector Long Island Sound, (203) 468–4544,
On March 19, 2012 the Coast Guard published a notice of proposed rulemaking (NPRM) entitled “Special Local Regulations; OPSAIL 2012 Connecticut, Niantic Bay, Long Island Sound, Thames River and New London Harbor, New London, CT” in the
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
The legal basis for this rule is 33 U.S.C. 1233, which authorizes the Coast Guard to define special local regulations.
This temporary special local regulation is necessary to ensure the safety of vessels and spectators from hazards associated with OPSAIL 2012 CT.
No comments were received and this final rule is unchanged from the rule published in the NPRM.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on several of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
Although this regulation prevents traffic from transiting a portion of Long Island Sound, the Thames River and New London Harbor during OPSAIL 2012 CT, the effect of this regulation will not be significant for the following reasons: During the limited time that the regulated areas will be in effect, mariners will be able to transit around some areas, and persons and vessels will still be able to enter, transit
These regulated areas have been narrowly tailored to impose the least impact on maritime interests yet provide the necessary level of safety.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on this rule. 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 temporary rule might affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit through Niantic Bay, portions of Long Island Sound, the Thames River and New London Harbor during various times from July 6–7, 2012. Although these regulations apply to a substantial portion of Niantic Bay and New London Harbor, designated areas for viewing the “Parade of Sail” have been established to allow for maximum use of the waterways by commercial tour boats that usually operate in the affected areas. Vessels, including commercial traffic, will be able to transit around some designated areas, and persons and vessels would still be able to enter, transit through, anchor in, or remain within the regulated areas if authorized by the COTP SLIS or designated representative. Before the effective period, the Coast Guard will make notifications to the public through Local Notice to Mariners and Broadcast Notice to Mariners. In addition, the sponsoring organization, Operation Sail, Inc., is planning to publish information of the event in local newspapers, internet sites pamphlets, television and radio broadcasts.
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 rule. 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 the person listed in the
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 will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and 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 responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233. Authority: 33 U.S.C. 1233.
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1) In accordance with the general regulations is § 100.35 of this part, entering into, transiting through, anchoring or remaining within the regulated areas is prohibited unless authorized by the Captain of the Port (COTP) Sector Long Island Sound (SLIS), or designated representative.
(2) All persons and vessels are authorized by the COTP SLIS or designated representative to enter areas of this special local regulation in accordance with the following restrictions:
(i)
(ii) Area 3 & 4; access is limited to vessels greater than 50 feet in length.
(iii) Area 2 & 5; access is limited to vessels Participating in the “Parade of Sail”.
(3) All persons and vessels shall comply with the instructions of the COTP SLIS or designated representative. These designated representatives are comprised of commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means the operator of a vessel shall proceed as directed.
(4) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated areas must contact the COTP SLIS by telephone at (203) 468–4401, or designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated areas is granted by the COTP SLIS or designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP SLIS or designated representative.
(5) The Coast Guard will provide notice of the regulated areas, prior to the event through the Local Notice to Mariners and Broadcast Notice to Mariners. Notice will also be provided by on-scene designated representatives.
(c)
(1) Area 1, from 6 a.m. July 6, until 5 p.m. on July 7, 2012.
(2) Areas 3 and 4, from 7:30 a.m. until 5 p.m. on July 7, 2012.
(3) Areas 2 and 5, from 10 a.m. until 5 p.m. on July 7, 2012.
Coast Guard, DHS.
Final rule; correction.
The Coast Guard is correcting a final rule that appeared in the
This correction is effective on June 21, 2012.
If you have questions on this final rule, call or email Mr. John Morris, Project Manager, U.S. Coast Guard; telephone 202–372–1402, email
The Coast Guard is correcting a final rule that appeared in the
The first preamble correction is to the
The second correction is to the
The additional corrections are to the regulatory text. The first regulatory text corrections are to 33 CFR 151.1510(a)(1) and 151.1515(a). In those paragraphs, we delete the text “U.S.” prefacing the words “Exclusive Economic Zone (EEZ)”. These corrections are needed to align with the definition of EEZ applicable to this part, 33 CFR 151.1504. Two regulatory text corrections are grammatical corrections required to clarify 33 CFR 151.2005(b), “Definitions” and 46 CFR 162.060–22(a), “Marking requirements”. The final correction, to 46 CFR 162.060–42(a)(3), “Responsibilities for independent laboratories (ILs)”, corrects a mistake which had directed independent laboratories to provide the estimated date for commencement of type-approval testing to the “Commandant (CG–52), Commercial Regulations and Standards Directorate”. Notification should be provided to U.S. Coast Guard Marine Safety Center.
In FR doc 2012–6579 appearing on page 17254 in the issue of Friday, March 23, 2012, the following corrections are made:
1. On page 17254, in the third column,
2. On page 17257, in the second column, in the last paragraph, remove the words “U.S. Exclusive Economic Zone (EEZ)” and add, in their place, the words “U.S. Exclusive Economic Zone and Canadian equivalent (EEZ; see 16 U.S.C. 4702)”.
3. On page 17304, in the first column, correct the paragraph following “M. Environment” to read as follows: “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 NEPA (42 U.S.C. 4321–4370f), and have concluded that this action may have a significant effect on the human environment. A Final Programmatic Environmental Impact Statement is available in the docket where indicated under
(b) * * *
(2)
(a) * * *
(3) Upon determination that the BWMS is ready for testing, the independent laboratory will notify the Commanding Officer, U.S. Coast Guard Marine Safety Center, 2100 2nd St. SW., Stop 7102, Washington, DC 20593–7102, and provide the estimated date for commencement of type-approval testing.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce various safety zones in the Sector New York area of responsibility on various dates and times. This action is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. During the enforcement period, no person or vessel may enter the safety zone without permission of the Captain of the Port (COTP).
The regulations for the safety zones described in 33 CFR 165.160 will
If you have questions on this notice, call or email Ensign Kimberly Farnsworth, Coast Guard; telephone 718–354–4163, email
The Coast Guard will enforce the safety zone listed in 33 CFR 165.160 on the specified dates and times as indicated in Table 1 below. If the event is delayed by inclement weather, the regulation will be enforced on the rain date indicated in Table 1 below. These regulations were published in the
Under the provisions of 33 CFR 165.160, a vessel may not enter the regulated area unless given express permission from the COTP or the designated representative. Spectator vessels may transit outside the regulated area but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the
Federal Maritime Commission.
Direct final rule; request for comments.
In this direct final rule, the Federal Maritime Commission is revising the regulations which govern negotiated rate arrangements. The rule eliminates some recordkeeping requirements to make them less burdensome.
This rule is effective September 10, 2012 without further action, unless significant adverse comment is received by August 10, 2012. If adverse comment is received, the Federal Maritime Commission will publish a timely withdrawal of the rule in the
Submit comments to: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573–0001, or email non-confidential comments to:
Karen V. Gregory, Secretary, Federal Maritime Commission, 800 N. Capitol Street NW., Washington, DC 20573–0001, (202) 523–5725, Fax (202) 523–0014, Email:
On March 2, 2011, the Federal Maritime Commission (Commission) issued a final rule, promulgating 46 CFR part 532, regulations which govern the exemption of licensed NVOCCs from their tariff rate publication obligations when entering into a “negotiated rate arrangement” (NRA). Commission Docket No. 10–03, 76 FR 11351, effective April 18, 2011.
In accordance with the Paperwork Reduction Act of 1995, as amended, agencies are required to display a currently valid control number. The valid control number for this collection of information is 3072–0071. Revised estimated burdens of collection of information authorized by this direct final rule have been submitted to the Office of Management and Budget for review under section 3504(h) of the Paperwork Reduction Act of 1995, as amended. The estimated annual burden for the estimated 3548 annual respondents is $340,921. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Ronald D. Murphy, Managing Director, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573, email:
Exports, Non-vessel-operating common carriers, Ocean transportation intermediaries.
Accordingly, the Federal Maritime Commission amends 46 CFR part 532 as follows:
46 U.S.C. 40103.
(b) Contain the names of the parties and the names of the representatives agreeing to the NRA;
An NVOCC wishing to invoke an exemption pursuant to this part must indicate that intention to the Commission and the public by a prominent notice in its rules tariff.
(a) An NVOCC invoking an exemption pursuant to this part must maintain original NRAs in an organized, readily accessible or retrievable manner for 5 years from the completion date of performance of the NRA by an NVOCC, in a format easily produced to the Commission.
(b) NRAs are subject to inspection and reproduction requests under § 515.31(g) of this chapter. An NVOCC shall produce the requested NRAs promptly in response to a Commission request. All records produced must be in English or be accompanied by a certified English translation.
(c) Failure to keep or timely produce original NRAs will disqualify an NVOCC from the operation of the exemption provided pursuant to this part, regardless of whether it has been invoked by notice as set forth above, and may result in a Commission finding of a violation of 46 U.S.C. 41104(1), 41104(2)(A) or other acts prohibited by the Shipping Act.
By the Commission.
Federal Communications Commission.
Final rule.
In this document the Commission amends its rules to allow Economic Area (EA)-based 800 MHz Specialized Mobile Radio (SMR) licensees to exceed a legacy channel spacing and bandwidth limitation, subject to conditions to protect 800 MHz public safety licensees from harmful interference. Licensees are permitted to exceed the channel spacing and bandwidth limitation in the 813.5–824/858.5–869 MHz band segment in National Public Safety Planning Advisory Committee (NPSPAC) regions where 800 MHz reconfiguration is complete. In areas where 800 MHz reconfiguration is incomplete, EA-based 800 MHz licensees only are permitted to exceed the channel spacing and bandwidth limitation in the 813.5–821/858.5–866 MHz band segment. Any EA-based 800 MHz SMR licensee that intends to exceed the channel spacing and bandwidth limitation of the Commission's rules must provide 30 days written notice to public safety licensees with base stations in an affected NPSPAC region and within 113 kilometers (70 miles) of the border of an affected NPSPAC region. This rule change is necessary to allow EA-based 800 MHz SMR licensees to deploy advanced wireless services to effectively compete in the wireless marketplace.
Effective July 9, 2012.
Brian Regan, Mobility Division, Wireless Telecommunications Bureau,
This is a summary of the Commission's
1. As part of our ongoing efforts to reduce barriers to innovation and investment in new technologies and to promote greater spectrum efficiency, we adopt this
2. The Commission revised its part 90 rules to create a new geographic-licensing framework for 800 MHz SMR in 1995. In doing so, the Commission transitioned the 800 MHz SMR service from a site-by-site licensing process that required licensees to seek prior authorization to add or modify individual frequency channels and transmitter sites to a geographic-based licensing mechanism that provides licensees with the flexibility to add transmitters or modify operations within their licensed market and licensed spectrum as market conditions dictate.
3. The Commission determined that wide-area licensing would “give licensees the flexibility to use technologies that can operate on either contiguous or non-contiguous spectrum” and that large spectrum blocks were necessary for “broadband technologies such as CDMA and GSM.” With wide-area licenses, the Commission indicated licensees would be able to “compete effectively with other CMRS providers, such as cellular and broadband PCS systems.” Further, the Commission stated its intent in the Executive Summary of the
4. In 2004, the Commission initiated a process to reconfigure the 800 MHz band in the
5. In part due to the reconfiguration of the 800 MHz band, Sprint Nextel holds the majority of EA-based 800 MHz SMR licenses, and reports that it “has or will soon have access to 14 MHz of spectrum in the ESMR band * * * across much of the nation.” In June 2010, Sprint Nextel announced its Network Vision initiative, under which it will “deploy next-generation base station technology that will operate across all of Sprint's licensed spectrum.” As part of its Network Vision initiative, Sprint Nextel reports it will incorporate its 800 MHz SMR spectrum into its CDMA network and forthcoming LTE deployment. However, Sprint Nextel is unable to aggregate its EA-based 800 MHz SMR channels to deploy CDMA or LTE because of the channel spacing and bandwidth limitation in § 90.209 of the Commission's rules. Sprint Nextel reports that CDMA requires contiguous spectrum and occupies a 1.25 MHz bandwidth, and that other wireless carriers are deploying LTE using 10 megahertz or 20 megahertz channel pairs. Specifically, § 90.209 limits EA-based 800 MHz SMR licensees to 25 kHz channels with a bandwidth of 20 kHz. Therefore, in June 2011, Sprint Nextel filed a petition for declaratory ruling, or rulemaking in the alternative, that would allow EA-based 800 MHz SMR licensees (commonly referred to as Enhanced SMR or ESMR) to exceed the channel spacing and bandwidth limitation under § 90.209. The Wireless Telecommunications Bureau released a
6. Prior to Sprint Nextel filing the petition, and subsequently while the petition has been pending, the Commission has granted waivers and special temporary authorizations to allow Sprint Nextel to deploy and test CDMA in several markets on its EA-based 800 MHz SMR licenses. Sprint Nextel filed for additional waivers in March 2012, and the Wireless Telecommunications Bureau issued a
7. Based on the record developed in response to the
8. Commenters generally support our proposal to provide flexibility to EA-based 800 MHz SMR licensees to exceed the channel spacing and bandwidth limitation in § 90.209. Similarly, many commenters support or do not oppose the proposed conditions to protect 800 MHz public safety licensees from harmful interference. As discussed below, we adopt the proposals from the
9. We amend § 90.209 of the Commission's rules to allow EA-based 800 MHz SMR licensees operating in the 813.5–824/858.5–869 MHz portion of the 800 MHz band to provide wireless services across aggregated channels, without unnecessary bandwidth or channelization limitations. We note that, pursuant to § 90.614(c) of the Commission's rules, the band segment 813.5–817/858.5–862 MHz is available for SMR operations only in the Southeastern United States. We conclude that the public interest will be
10. We also find that the proposals from the
11. Below we explain the conditions under which EA-based 800 MHz SMR licensees may exceed the channel spacing and bandwidth limitation in § 90.209, take steps to protect 800 MHz public safety licensees from harmful interference, and discuss the continued applicability and sufficiency of other part 90 rules. We also discuss and decline to adopt additional protections proposed by commenters and decline to take other actions that we find are outside of the scope of this proceeding.
12. We find that there are substantial benefits to revising our part 90 rule regarding channel spacing and bandwidth limits. The record demonstrates that providing EA-based 800 MHz SMR licensees the flexibility to exceed the channel spacing and bandwidth limitation in § 90.209 effectively eliminates a barrier to the deployment of advanced wireless technologies, promotes spectrum efficiency, and improves regulatory parity between commercial wireless licensees, to consumers' benefit. Under this rule change, EA-based 800 MHz SMR licensees will no longer be forced to comply with an inefficient channelization scheme that prevents licensees from utilizing multiple contiguous channels to provide service. With flexibility regarding channelization and bandwidth utilization, as Sprint Nextel and SouthernLINC Wireless (SouthernLINC) assert, EA-based 800 MHz SMR licensees will be able to deploy CDMA, LTE, and other advanced wireless technologies. Licensees will therefore be able to transition networks deployed using EA-based 800 MHz SMR licenses from legacy narrowband technologies to 3G as well as other advanced technologies including LTE, in order to better compete in the commercial wireless marketplace. We agree with Sprint Nextel that this will allow EA-based 800 MHz SMR licensees to “respond to consumer demand for innovative wireless services” including, as SouthernLINC argues, through the deployment of advanced wireless services to “rural, unserved, and underserved areas.” Southern also argues that when SouthernLINC transitions its network to more advanced wireless technologies, SouthernLINC will be able to provide innovative services to Southern Company Services' electric company affiliates.
13. Based on the record, we therefore find that it is in the public interest to amend § 90.209 to allow EA-based 800 MHz SMR licensees to exceed the channel spacing and bandwidth limitation in § 90.209 in the 813.5–824/858.5–869 MHz band segment in National Public Safety Planning Advisory Committee (NPSPAC) regions where all 800 MHz public safety licensees in the region have completed band reconfiguration. In NPSPAC regions where reconfiguration is incomplete, we amend § 90.209 to allow EA-based 800 MHz SMR licensees to exceed the channel spacing and bandwidth limitation only in the 813.5–821/858.5–866 MHz band segment. Consistent with this
14. We recognize that the affected portion of the 800 MHz band is currently subject to an ongoing reconfiguration process to protect 800 MHz public safety users from interference from incompatible commercial networks. We seek to ensure that the progress made to protect public safety licensees from interference is not affected by the flexibility we provide today, and adopt additional protections for 800 MHz public safety licensees.
15. We find based on the record that the 30-day notification condition we proposed in the
16. We agree with commenters that the 30-day notice requirement will allow EA-based 800 MHz SMR licensees to use their spectrum more efficiently, while continuing to protect 800 MHz public safety licensees. Pursuant to this notice requirement, in the event that an 800 MHz public safety licensee experiences harmful interference subsequent to receiving the required notice from an EA-based 800 MHz SMR licensee, the public safety licensee can more quickly identify or eliminate EA-based 800 MHz SMR operations as the source of interference. While this requirement will result in certain costs to EA-based licensees who must identify and timely notify affected public safety entities, we find that the resulting benefits—efficient resolution of interference to a public safety entity—offsets such costs. As SouthernLINC states, this condition “will impose only a modest burden on ESMR licensees and will ensure that 800 MHz public safety licensees are fully informed, thus making it easier to swiftly resolve any issues or concerns that may arise.”
17. The Association of Public-Safety Communications Officials-International, Inc. (APCO) and CTO suggest additional conditions that they argue will help protect 800 MHz public safety licensees from harmful interference caused by EA-based 800 MHz SMR licensees that exceed the channel spacing and bandwidth limitation. APCO urges us to require EA-based 800 MHz SMR licensees that seek to exceed the channel spacing and bandwidth limitation in NPSPAC regions bordering Mexico to provide 30 days prior written notification to all public safety licensees in the border area, and that such notice should include a 24-hour contact number in case interference occurs.
18. We decline to modify the notice requirement as requested by APCO. APCO describes a scenario in which an EA-based 800 MHz SMR licensee exceeds the channel spacing and bandwidth limitation in a NPSPAC region that includes the Mexico border area, and is operating co-channel with an 800 MHz public safety licensee with a base station in the Mexico border area within the same NPSPAC region. In this scenario, the EA-based 800 MHz SMR licensee would be required under this
19. Further, with respect to APCO's request that the notice be accompanied by a 24-hour contact number, Sprint Nextel notes that the 24-hour reporting capability is currently available on the CMRS/public safety interference reporting Web site, required by the
20. CTO urges us to adopt an additional condition requiring EA-based 800 MHz SMR licensees to transmit a second notice to affected 800 MHz public safety licensees that would include the date on which operations will begin, the specific locations of antenna sites, and effective radiated power (ERP) for each antenna site. CTO argues that the additional notice would ensure that public safety entities continue to be notified of changes near their operations. While we find it appropriate to require licensees to include the approximate date of operation in their notifications, we decline to adopt the additional notice suggested by CTO. The notice requirement we adopt today is designed to provide notice to public safety licensees so that they may monitor their networks for any increase in harmful interference caused by EA-based 800 MHz SMR licensees that exceed the standard channel spacing and bandwidth limitation and take appropriate steps to initiate a process to remedy such interference should it occur. A notification requirement that includes antenna location or ERP would not further this goal. Therefore, we find that adopting a second notice requirement would result in little added benefit to public safety entities while imposing undue costs on EA-based 800 MHz SMR licensees.
21. The
22. We conclude that the 30-day notice condition, in combination with the limitation preventing EA-based 800 MHz SMR licensees from exceeding the channel spacing and bandwidth limitation in NPSPAC regions where reconfiguration is incomplete, adequately protects 800 MHz public safety licensees from harmful interference.
23. We note that, while we find that the 30-day notice requirement and the continued application of the channel spacing and bandwidth limitation in 821–824/866–869 MHz in NPSPAC regions where reconfiguration is incomplete will help protect public safety operations from harmful interference, these measures are supplements to the existing technical rules in part 90 governing EA-based 800 MHz SMR operations. We continue to believe that our current rules provide appropriate safeguards against harmful interference, and we emphasize that, in providing greater flexibility with respect to the channel spacing and bandwidth limitation, we are not removing or revising any other technical rules that enable licensees to coexist within the 800 MHz band.
24. To the contrary, EA-based 800 MHz SMR licensees subject to this
25. The Enterprise Wireless Alliance (EWA) states its assumption that because the Commission will allow EA-based 800 MHz SMR licensees to exceed the channel spacing and bandwidth requirement in 813.5–824/858.5–869 MHz, such operation will not “present interference concerns for future users of the Guard Band spectrum [817–818/861–862 MHz] either.” The
26. EWA also suggests we clarify the applicability of the rule change adopted in this
27. Several commenters agree that, as a general matter, EA-based 800 MHz SMR licensees' continued compliance with the part 90 rules will serve to protect all other 800 MHz licensees from harmful interference. For example, SouthernLINC argues that “the ongoing obligation of 800 MHz ESMR licensees to operate in strict compliance with these rules will continue to serve as yet another form of protection from interference for 800 MHz public safety licensee.” RCA—The Competitive Carriers Association notes that the Commission “has done much to ensure 800 MHz public safety licensees receive ample protection from broadband operations,” specifically citing EA-based 800 MHz SMR licensees' obligation to abate interference to public safety systems and other 800 MHz licensees.
28. In this regard, Sprint Nextel argues that it has taken steps beyond what the Commission's rules require to minimize the risk of interference to public safety licensees. Sprint Nextel asserts that it will incorporate “extremely tight” OOBE requirements into its CDMA equipment to minimize the risk of harmful interference in areas where reconfiguration is complete, as well as provide aggressive OOBE roll-off protection for public safety systems operating in 821–824/866–869 MHz. Sprint Nextel also asserts that numerous tests confirm that its CDMA deployment “should further reduce the already-low risk of intermodulation interference to 800 MHz band public safety systems.”
29. A group of nine public safety entities (Public Safety Licensees) argues that the technical analysis provided by Sprint Nextel on the record is an “Intermodulation Interference test,” and that without filtering specifications, the Public Safety Licensees are unable to verify Sprint Nextel's claimed OOBE protections. The Public Safety Licensees argue that without certainty regarding OOBE levels, the Commission should require a greater demonstration of non-interference before revising the channel spacing and bandwidth limitation. In response, Sprint Nextel states that it has previously provided detailed information regarding its OOBE base station emissions mask requirements, as well as statements from each of its three equipment vendors affirming that Sprint Nextel's base stations are being designed to meet that mask. Sprint Nextel argues that the risk of interference to public safety or other non-ESMR 800 MHz operators from Sprint Nextel's planned 800 MHz broadband operations will be the same or less than its current iDEN deployment.
30. We find no basis to conclude that EA-based 800 MHz SMR operations using bandwidths wider than 25 kHz must be subject to more stringent technical requirements than our rules in part 90 currently impose. We believe that our existing part 90 technical rules are sufficient to protect 800 MHz public safety licensees or other 800 MHz licensees from harmful interference from EA-based 800 MHz SMR operations that exceed the channel spacing and bandwidth limitation in § 90.209. We believe that revising the part 90 channel spacing and bandwidth limitation is unlikely to cause 800 MHz public safety licensees to experience increased harmful intermodulation interference due in part to the fact that, other things being equal, the use of wider channels generally spreads the available power across a much wider bandwidth than narrowband technologies, thereby lowering the level of intermodulation interference that might occur. As Sprint Nextel affirms on the record, its CDMA operations may decrease intermodulation interference relative to its iDEN operations. We note that Sprint Nextel is permitted under waiver or special temporary authority to exceed the channel spacing and bandwidth limitation prescribed by § 90.209 in nine different markets covering large population centers. Sprint Nextel has been able to exceed the channel spacing or bandwidth limitation in five of the markets for 11 months. We have not received any complaints of interference from any 800 MHz licensee as a result of Sprint Nextel's operations in any of the markets to date. Accordingly, we believe 800 MHz public safety licensees will not be subject to increased harmful interference when EA-based 800 MHz SMR licensees comply with or exceed the protections under existing technical requirements in part 90.
31. The Public Safety Licensees also assert that the Commission should proactively ensure that interference will not occur, rather than have 800 MHz licensees rely on the interference abatement process in § 90.673 if interference occurs. They argue that, although the interference may be resolved, the public safety licensee is stuck with the costs of finding, investigating, and participating in resolving interference under § 90.673. As a general matter, our part 90 rules are designed to proactively limit the possibility of harmful interference. Section 90.673 was created to further protect public safety licensees in the unforeseen event that harmful
32. Finally, CTO and Thomas Michael Roskos, Jr. (Roskos) suggest we afford additional flexibility to licensees other than EA-based 800 MHz SMR licensees. CTO urges us to “treat all [800 MHz commercial] licensee's [sic] equally and to develop plans which allow `contiguous use of spectrum' to licensees to be able to provide similar and competing services in the Band.” Roskos argues that we should find that any licensee under part 90 with contiguous spectrum should be able to aggregate the channels and use them on a wideband basis so long as the operations do not raise OOBE above an unacceptable level. We find insufficient record support for these requests, and we decline to expand the scope of this
33. We find that the record strongly supports our decision to provide channel spacing and bandwidth flexibility to EA-based 800 MHz SMR licensees, and that such flexibility will promote the deployment of advanced wireless technologies. The record demonstrates that the minimal costs incurred by EA-based 800 MHz SMR licensees and 800 MHz public safety licensees are far outweighed by the benefits generated through the elimination of this legacy rule, including improving spectrum efficiency and the availability of wireless broadband. We also find that the existing protections in our rules, coupled with the new protections added through this
34. As required by the Regulatory Flexibility Act of 1980, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document.
35. This document adopts new or revised information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA). The requirements were submitted to the Office of Management and Budget (OMB) for review under sec. 3507 of the PRA. The Commission published notice of the information collection in the
36. The Commission will send a copy of this
As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the
37. The rule adopted in this
38. The rule allows EA-based 800 MHz SMR licensees in the 813.5–824/858.5–869 MHz band segment to exceed the channel spacing and bandwidth limits in § 90.209 of the Commission's rules, subject to conditions. EA-based 800 MHz SMR licensees may exceed the channel spacing and bandwidth limitation in the 813.5–824/858.5–869 MHz band segment of the 800 MHz band in National Public Safety Planning Advisory Committee (NPSPAC) regions where 800 MHz reconfiguration is complete. In NPSPAC regions where 800 MHz reconfiguration is incomplete, EA-based 800 MHz licensees may exceed the channel spacing and bandwidth limitation only in 813.5–821/858.5–866 MHz. Upon all 800 MHz public safety licensees in a region completing band reconfiguration, EA-based 800 MHz SMR licensees in 821–824/866–869 MHz may also exceed the channel spacing and bandwidth limitation. We note that, pursuant to § 90.614(c) of the Commission's rules, the band segment 813.5–817/858.5–862 MHz is available for SMR operations only in the Southeastern United States. We also require EA-based 800 MHz SMR licensees to provide 30 days written notice to 800 MHz public safety licensees with base stations in a NPSPAC region where an EA-based 800 MHz SMR licensee intends to exceed the channel spacing and bandwidth limitation, and to public safety licensees with base stations within 113 kilometers (70 miles) of an affected NPSPAC region border. Finally, we require such notice to include the estimated date the EA-based 800 MHz SMR licensee's operations will exceed the channel spacing requirement and bandwidth limitation.
39. We believe this rule will reduce barriers to innovation and investment and allow EA-based 800 MHz SMR licensees to deploy competitive wireless services, to consumers' benefit. The record demonstrates support for the rule change, and demonstrates that it will result in significant benefits while imposing minimal costs on EA-based 800 MHz SMR licensees, 800 MHz public safety licensees, or other 800 MHz licensees
40. There were no public comments filed that specifically addressed the rules and policies proposed in the IRFA.
41. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration, and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
42. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
43.
44.
45.
46. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels was conducted in 2000. Eleven bidders that won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In an auction completed in 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business.
47. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500 or fewer employees. We assume, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is approved by the SBA.
48. The rule provides regulatory flexibility to all EA-based 800 MHz SMR licensees. The rule will impose limited reporting or recordkeeping requirements to the extent an EA-based 800 MHz SMR licensee seeks to exceed the channel spacing and bandwidth limitation in § 90.209 of the Commission's rules. In such cases, the licensee must provide 30 days advanced written notice to all public safety licensees with a base station in an affected NPSPAC region and within 113 kilometers (70 miles) of the border of an affected NPSPAC region. This notice must include the estimated date that the EA-based 800 MHz SMR licensee's operations will exceed the channel spacing and bandwidth limitation. Otherwise, the rule will impose only a small compliance burden.
49. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
50. The
51. None.
52. Pursuant to the authority contained in sections 1, 2, 4(i), 4(j), 301, 302, 303, 307, and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302a, 303, 307, and 308, this
53. The rules adopted herein will become effective July 9, 2012.
54. The Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this
Business and industry, Common carriers, Communications equipment, Radio.
For the reasons set forth in the preamble, the Federal Communications Commission amends part 90 of Title 47 of the Code of Federal Regulations (CFR) as set forth below:
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
(b) * * *
(7) Economic Area (EA)-based licensees in frequencies 817–824/862–869 MHz (813.5–824/858.5–869 MHz in the counties listed in § 90.614(c)) may exceed the standard channel spacing and authorized bandwidth listed in paragraph (b)(5) of this section in any National Public Safety Planning Advisory Committee Region when all 800 MHz public safety licensees in the Region have completed band reconfiguration consistent with this part. In any National Public Safety Planning Advisory Committee Region where the 800 MHz band reconfiguration is incomplete, EA-based licensees in frequencies 817–821/862–866 MHz (813.5–821/858.5–866 MHz in the counties listed in § 90.614(c)) may exceed the standard channel spacing and authorized bandwidth listed in paragraph (b)(5) of this section. Upon all 800 MHz public safety licensees in a National Public Safety Planning Advisory Committee Region completing band reconfiguration, EA-based 800 MHz SMR licensees in the 821–824/866–869 MHz band may exceed the channel spacing and authorized bandwidth in paragraph (b)(5) of this section. Licensees authorized to exceed the standard channel spacing and authorized bandwidth under this paragraph must provide at least 30 days written notice prior to initiating such service in the bands listed herein to every 800 MHz public safety licensee with a base station in an affected National Public Safety Planning Advisory Committee Region, and every 800 MHz public safety licensee with a base station within 113 kilometers (70 miles) of an affected National Public Safety Planning Advisory Committee Region. Such notice shall include the estimated date upon which the EA-based 800 MHz SMR licensee intends to begin operations that exceed the channel spacing and authorized bandwidth in paragraph (b)(5) of this section.
Defense Nuclear Facilities Safety Board.
Notice of proposed rulemaking; correction.
This document corrects the
Brian Grosner, General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004–2901, (202) 694–7060.
In proposed rule FR Doc. 2012–13295, dated June 1, 2012 on page 32433 in the third column, the
The FOIA requires each Federal agency covered by the Act to specify a schedule of fees applicable to processing of requests for agency records. 5 U.S.C. 552(a)(4)(A)(i). Pursuant to 10 CFR 1703.107(b)(6) of the Board's regulations, the Board's General Manager will update the FOIA Fee Schedule once every 12 months. Previous Fee Schedule Updates were published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would establish procedures governing the National Appeals Office (NAO), a division of NMFS' Office of Management and Budget within NOAA. NAO's central mission is to provide an efficient means of adjudicating appeals by providing due process and consistency to NMFS' administrative decisions. This proposed rule would establish a process by which NMFS could review, and if necessary correct, decisions about certain limited access privilege programs under Section 303A of the Magnuson-Steven Fishery Conservation and Management Act. The proposed procedures could also be used to adjudicate appeals from other offices that incorporate these rules into their regulations or otherwise notify potential appellants of the procedures' applicability to their proceedings.
NMFS invites interested persons to submit comments on this proposed rule. To ensure consideration, comments must be in writing and must be received by July 9, 2012.
You may submit comments, identified by NOAA–NMFS–2011–0266, by one of the following methods:
•
•
•
Steven Goodman, National Appeals Office, Office of Management & Budget, NMFS, 1315 East West Hwy., Room 9553, Silver Spring, MD 20910;
In 2007, Congress added section 303A to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Section 303A authorizes limited access privilege programs (LAPP) and requires NMFS to “include an appeals process for administrative review of the Secretary's decisions regarding initial
LAPPs may provide benefits to certain members of the public, while excluding others. Thus, a transparent, unbiased and clear appeals process is essential. LAPP applicants across the country should be provided with a uniform level of due process and consistent procedures for filing and deciding appeals. Further, a robust administrative appeals process provides a means for an agency to make corrections and avoid costly litigation. Accordingly, NMFS is proposing to adopt procedural regulations at 15 CFR part 906, which would designate NAO, a division within NMFS Office of Management and Budget, as adjudicator for all future appeals arising under section 303A of the MSA. NAO may also be used for other Department of Commerce adjudications if the proposed regulations are adopted by regulation or other means and potential appellants are given notice. For example, other programs that may opt into the NAO process may include the Alaska Charter Halibut Limited Access Program or the North Pacific Groundfish Observer Program.
NAO adjudicates initial administrative determinations, defined in the proposed rule as agency actions that directly and adversely affect an appellant. Typically, although not exclusively, NAO proceedings are for appeals of denials of permits or other limited access privileges. The proposed rule does not encompass proceedings made available pursuant to 15 CFR part 904. The regulations at 15 CFR part 904 are for administrative proceedings over cases involving a Notice of Violation and Assessment of civil penalty, permit sanctions, written warnings, or seizure and forfeiture of property for violating 34 statutes NOAA enforces. The regulations codified at 15 CFR part 904 provide distinct procedures, including a different administrative process that includes the agency as a party to an appeal.
The proposed action should avoid future unnecessary costs and redundancies through a centralized administrative appeals process for review of initial administrative determinations. A centralized system for adjudicating appeals is more cost effective than duplicating the appeals function in each region. Historically, administrative appeals were processed by NMFS' regional offices. Each NMFS region has had a different structure and process for resolving appeals.
The proposed action will promote consistency in decision making and responsiveness to due process considerations. A centralized office will use experienced, full-time adjudicators to decide appeals, and programs would benefit from their collective experience and institutional memory. A cadre of experienced and well-trained appellate officers would free other employees to use their time performing duties within their area of expertise. Under the current proposal, NAO could adjudicate appeals in one location. This will allow for economies of scale and freeing-up of resources for use in regional offices.
Typically, NAO will be used for informal administrative appeals. The proposed rule allows flexibility in determining what type and how many pre-hearing conferences are needed. An appellate officer has the discretion to hold a scheduling and/or pre-hearing conference if he or she thinks one is needed to materially advance the proceeding. An appellate officer's discretion in determining whether to hold a scheduling and/or pre-hearing conference will be guided by the following: settlement, if allowed under applicable law; clarification of the issues under review; stipulations; hearing(s) date, time, and location; identification of witnesses for the hearing(s); development of the NAO case record, and; other matters that may aid in the disposition of the proceedings.
Hearings are also held at the discretion of an appellate officer or if the appellate officer considers such hearing will materially advance his or her evaluation of the issues under appeal. In determining whether to hold a hearing, an appellate officer's discretion will be guided by whether the appellate officer believes oral testimony is required to resolve a material issue of fact or whether oral presentation is needed to probe a party's position on a material issue of law. Conferences and hearings may be in person, but more likely, they will be held by telephone or by other electronic means. The rule does not bar face-to-face hearings, but it is not intended to require expenditure of funds in order for an appellant to participate, or at its discretion, the agency to participate, in a hearing.
The proposed regulations address operations as well as events that occur during the course of adjudicating an appeal filed with NAO. The proposed rule provides who may file, how and when to initiate an appeal, and what constitutes the agency record and transmittal for inclusion in the NAO case record for the appeal. During a hearing and while the record is open, the appellate officer determines whether additional evidence should be admitted in the NAO case record. The proposed rule prohibits ex parte communications, but clarifies that non-substantive communications or communications about procedural matters are permissible. The proposed rule establishes time frames and deadlines for actions to ensure a reasonably expeditious review, and while that may be modified, that would not be the norm.
NAO will produce written decisions upholding or reversing the administrative determination under review. The proposed rule establishes parameters for written decisions. The appellant has the burden of proving by a preponderance of the evidence that he or she should prevail. Thus it is incumbent upon the appellant to garner and present evidence to support his or her claim.
Generally, under the proposed rule a decision issued by NAO becomes final 30 days after issuance. The effective date of the final decision is subject to delay for reconsideration by NAO, or review by a Regional Administrator of NMFS or other appropriate official. NAO will follow applicable federal law and policy which may include publishing NAO and Regional Administrator decisions on NAO's Web site.
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. This regulation does not create any new regulatory requirements, but instead codifies procedural rules for certain administrative adjudication proceedings. The proposed rule would not create any new obligations for small entities; rather, it would ensure a standardized and centralized appeals process for decisions regarding initial allocation of limited access privileges. As a result, any potential economic impact on small entities would be nominal. While it is possible that a substantial number of small entities could participate in the adjudication proceedings, the procedures being established here would not have a significant economic impact on those entities. Implementing standardized rules could actually reduce the
Because this proposed rule, if enacted, would not have a significant impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Administrative appeals, Administrative practice and procedure, Fisheries.
For reasons stated in the preamble, NMFS proposes to add 15 CFR part 906 as follows:
16 U.S.C. 1801 et seq.; 16 U.S.C. 1374, 1375 & 1416; 16 U.S.C. 1540; 16 U.S.C. 773f; 16 U.S.C. 973f; 16 U.S.C. 1174; 16 U.S.C. 2437; 16 U.S.C. 4013; 16 U.S.C. 5507; 16 U.S.C. 7009; 16 U.S.C. 3637; 16 U.S.C. 5103 & 5106; 16 U.S.C. 5154 & 5158; 16 U.S.C. 6905, and; 16 U.S.C. 5010.
(a) This part sets forth the procedures governing proceedings before the National Appeals Office (NAO). These procedures provide standard rules of practice for administrative adjudications by NAO.
(b) NAO will adjudicate appeals of initial administrative determinations in limited access privilege programs developed under section 303A of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and approved after the effective date of these regulations. Those appeals are informal proceedings.
(c) The procedures contained in this part may be incorporated by reference in rules or regulations other than those promulgated pursuant to section 303A of the MSA. The Secretary may also request that NAO adjudicate appeals in any matter in controversy that requires findings of fact and conclusions of law, and other quasi-judicial matters that the Secretary deems appropriate, consistent with existing regulations. The Secretary shall provide notice to potential appellants and to any affected party in these other matters through regulations or actual notice.
(a)
(b)
(2) The petition shall include a copy of the initial administrative determination the person wishes to appeal.
(3) In the petition, the person shall state how the initial administrative determination directly and adversely affects him or her, why he or she believes the initial administrative determination is wrong, and whether he or she requests a hearing or prefers that an appellate officer make a decision based on the NAO case record and without a hearing.
(i) Arguments not raised by the person in his or her petition to appeal will be deemed waived.
(ii) The petition may include additional documentation in support of the appeal.
(4) If a person requests a hearing, the written request must include a concise statement raising genuine and substantial issues of a material fact or law that cannot be resolved based on the documentary evidence.
(5) In the petition, a person shall state whether the person has a representative, and if so, the name, address, and telephone number for the representative.
(c)
(1) The address of record may include a representative's address.
(2) NAO bears no responsibility if the appellant or his or her representative does not receive documents because appellant or his or her representative changes his or her address without proper notification to NAO.
(3) NAO bears no responsibility if the appellant or his or her representative fail to retrieve documents upon notification from the United States Postal Service or commercial carrier.
(4) NAO will presume that documents addressed to an address of record and properly mailed or given to a commercial carrier for delivery are received.
(d)
(e)
(f)
(2) The office that issued the initial administrative determination shall organize the pages of the agency record in chronological order.
(g)
(a)
(1) All documents filed on behalf of an appellant or related to an appeal shall be submitted to NAO via facsimile.
(2) If the person filing does not have access to a fax machine, he or she may file by regular mail or commercial carrier to Chief, National Appeals Office, 1315 East-West Hwy., Room 9552, Silver Spring, MD 20910.
(3) A document transmitted to NAO is considered filed upon receipt of the entire submission by 5 p.m. Eastern Time at NAO.
(b)
(c)
(d)
(e)
(2) NAO may grant the extension if an appellate officer determines good cause for an extension of time has been established by the party.
(a) Service refers to providing documents to parties to an appeal. (1) Service of documents may be made by first class mail (postage prepaid), facsimile, or commercial carrier, or by personal delivery to a party's address of record.
(2) Service of documents will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), facsimile transmission, delivery to a commercial carrier, or upon personal delivery.
(b) A party shall serve a copy of all documents to all other parties and shall file a copy of all documents with NAO the same business day.
(c) NAO may serve documents by electronic mail.
(a) Communication with NAO, including appellate officers, concerning procedures, scheduling, and status is permissible.
(b) Ex parte communication between NAO and the parties about the merits of a pending appeal is not permissible unless all parties have been given reasonable notice and an opportunity to participate in the communication.
(c) If NAO receives an ex parte communication, NAO shall document the communication and any responses thereto in the NAO case record. If the ex parte communication was in writing, NAO shall place a copy of the communication in the NAO case record. If the ex parte communication was oral, NAO shall prepare a memorandum stating the substance of the oral communication, which will then be included in the NAO case record. NAO will provide copies of any such materials included in the NAO case record under this paragraph to the parties to the appeal.
(d) NAO may require a party to show cause why such party's claim or interest in the appeal should not be dismissed, denied, disregarded, or otherwise adversely affected because of an ex parte communication as described in paragraphs (b) and (c) of this section.
(e) This rule may be suspended by NAO during an alternative dispute resolution process.
(a) An appellate officer shall disqualify him or herself if the appellate officer has a perceived or actual conflict of interest, a perceived or actual prejudice or bias, for other ethical reasons, or based on principles found in the American Bar Association Model Code of Judicial Conduct for Administrative Law Judges.
(b) Any party may request an appellate officer, at any time before the
(c) The appellate officer, orally or in writing, shall grant or deny the motion based on the American Bar Association Model Code of Judicial Conduct for Federal Administrative Law Judges and other applicable law or policy. If the motion is granted, the appellate officer will disqualify himself or herself and withdraw from the proceeding. If the motion is denied, the appellate officer will state the grounds for his or her ruling and proceed with his or her review.
(a) NAO may convene a scheduling and/or pre-hearing conference if, for example, an appellate officer in his or her discretion finds a conference will materially advance the proceeding.
(b) NAO shall notify the parties in writing 10 days prior to a conference unless the Chief of NAO orders a shorter period of time for providing notice or conducting a conference.
(c) The following will guide an appellate officer in determining whether to exercise his or her discretion to hold a scheduling and/or pre-hearing conference.
(1) Settlement, if possible under applicable law;
(2) Clarifying the issues under review;
(3) Stipulations;
(4) Hearing(s) date, time, and location;
(5) Identifying witnesses for the hearing(s);
(6) Development of the NAO case record, and;
(7) Other matters that may aid in the disposition of the proceedings.
(d) NAO may record the conference.
(e)
(f) NAO may issue an order showing the matters disposed of in the conference and may include in the order other matters related to the appeal.
(a) The parties shall mark all exhibits in consecutive order in whole Arabic numbers and with a designation identifying the party submitting the exhibit(s).
(b) Parties shall exchange all exhibits that will be offered at the hearing at least 10 days before the hearing.
(c) Parties shall provide all exhibit(s) to NAO at least 10 days before the hearing.
(d) NAO may modify the timeframe for exchanging or submitting exhibits if an appellate officer determines good cause exists.
(e) NAO may deny the admission into evidence of exhibits that are not marked and exchanged pursuant to this rule.
(f) Each exhibit offered in evidence or marked for identification shall be filed and retained in the NAO case record.
(a) The Federal Rules of Evidence do not apply to NAO proceedings.
(b) NAO will decide whether to admit evidence into the NAO case record.
(1) An appellate officer may exclude unduly repetitious, irrelevant, and immaterial evidence. An appellate officer may also exclude evidence to avoid undue prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence.
(2) An appellate officer may consider hearsay evidence.
(c) Copies of documents may be offered as evidence, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were originals. If an appellate officer so directs, a party shall submit original documents to the appellate officer.
(d) An appellate officer may take official notice of Federal or State public records and of any matter of which courts may take judicial notice.
(e) An appellate officer may contact the program office that issued the initial administrative determination in the case before the appellate officer in order to obtain the interpretation(s) of the law and regulation(s) made by the program office and applied to the facts in the case. The program office will provide to NAO the interpretation(s) of the law and regulation(s) made by that office in the case.
(a)
(2) If an appellate officer convenes a hearing, the hearing will be conducted in the manner determined by NAO most likely to obtain the facts relevant to the matter or matters at issue.
(3) NAO shall schedule the date, time and place for the hearing. NAO will notify the parties in writing of the hearing date, time and place at least 10 days prior to the hearing unless the Chief of NAO orders a shorter period for providing notice or conducting the hearing.
(4) At the hearing, all testimony will be under oath or affirmation administered by an appellate officer. In the event a party or a witness refuses to be sworn or refuses to answer a question, an appellate officer may state for the record any inference drawn from such refusal.
(5) An appellate officer may question the parties and the witnesses.
(6) An appellate officer will allow time for parties to present argument, question witnesses and other parties, and introduce evidence.
(7) Parties may not compel discovery or the testimony of any witness.
(b)
(c)
(a) At the conclusion of the NAO proceedings, an appellate officer will establish the date upon which the evidentiary portion of the NAO case record will close. Once an appellate officer closes the evidentiary portion of the NAO case record, with or without a hearing, no further submissions or argument will be accepted into the NAO case record.
(b) NAO in its discretion may reopen the evidentiary portion of the NAO case record or request additional information from the parties at anytime.
If any party fails to appear at a pre-hearing conference or hearing after proper notice, an appellate officer may:
(a) Dismiss the case, or;
(b) Deem the failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the
On issues of fact, the appellant bears the burden of proving he or she should prevail by a preponderance of the evidence. Preponderance of the evidence is the relevant evidence in the NAO case record, considered as a whole, that a reasonable person would accept as sufficient to find a contested fact is more likely than not. Appellant has the obligation to obtain and present evidence to support the claims in his or her petition.
(a) After an appellate officer closes the evidentiary portion of the NAO case record, NAO will issue a written decision that is based on the NAO case record. In making a decision, NAO shall determine whether the appellant has shown by a preponderance of the evidence that the initial administrative determination is inconsistent with applicable laws and regulations. In making a decision, NAO shall give deference to the reasonable interpretation(s) of applicable ambiguous laws and regulations made by the office issuing in the initial administrative determination.
(b) At any time before a decision is implemented pursuant to § 906.18, NAO may issue a corrected decision.
(c) NAO shall serve a copy of its decision upon the appellant and the Regional Administrator.
(d) Except as provided in §§ 906.16 and 906.17, NAO's decision takes effect 30 days after the date it is issued and, upon taking effect, is the final decision of the Department for the purposes of judicial review.
(a) Any party may file a motion for reconsideration of NAO's decision. The request must be filed with NAO within 10 calendar days after service of NAO's decision.
(b) The motion must be in writing and contain a detailed statement of an error of fact or law material to the decision.
(c) If an appellate officer grants the motion for reconsideration, then NAO will stay the effective date of its decision under reconsideration review.
(d) In response to a motion for reconsideration, NAO will either:
(1) Reject the motion because it does not meet the criteria of paragraph (a) or (b) of this section; or
(2) Issue a revised decision which will take effect 30 days after it is issued and is the final decision of the Department for the purposes of judicial review, unless the Regional Administrator remands, reverses or modifies it pursuant to § 906.17.
(a) Regional Administrator authority and procedures. (1) A decision issued pursuant to § 906.15 or revised decision issued pursuant to § 906.16 is subject to review by the Regional Administrator. After 10 days of the date of the decision issued by NAO, the Regional Administrator may remand, reverse, or modify NAO's decision. In reviewing NAO's findings of fact, the Regional Administrator may only consider the evidentiary record including arguments, claims, evidence of record and other documents of record which were before NAO when it rendered its decision.
(2) The Regional Administrator must provide a written decision explaining why NAO's decision has been remanded, reversed, or modified. The Regional Administrator must serve a copy of the remanded, reversed or modified decision on NAO and the appellant promptly.
(b) The Regional Administrator's written decision to reverse or modify NAO's decision is the final decision of the Department for the purposes of judicial review.
(c) If the Regional Administrator does not remand, reverse, or modify NAO's decision under paragraphs (a) and (b) of this section, NAO's decision is the final decision of the Department for the purposes of judicial review.
The final decision shall be implemented by the office that issued the initial administrative determination within 30 days after issuance of the final decision to the extent practicable and consistent with program regulations.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the approximately 4,800-square mile “Indiana Uplands” viticultural area in south-central Indiana and proposes to modify the boundary of the established Ohio River Valley viticultural area, which would result in the elimination of a potential overlap with the proposed Indiana Uplands viticultural area. These proposals would result in an approximately 1,530 square mile region no longer being part of the Ohio River Valley viticultural area as the affected region would be included in the new Indiana Uplands viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on these proposals.
TTB must receive written comments on or before August 7, 2012.
You may send comments on this notice to one of the following addresses:
•
•
•
See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this notice, selected supporting materials, and any comments TTB receives about this proposal at
Elisabeth C. Kann, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G St. NW.,
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120–01 (Revised), dated January 21, 2003, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved American viticultural areas.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and a name and a delineated boundary as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of American viticultural areas. Such petitions must include the following:
• Evidence that the area within the proposed viticultural area boundary is nationally or locally known by the viticultural area name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed viticultural area;
• A narrative description of the features of the proposed viticultural area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make it distinctive and distinguish it from adjacent areas outside the proposed viticultural area boundary;
• A copy of the appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed viticultural area, with the boundary of the proposed viticultural area clearly drawn thereon; and
• A detailed narrative description of the proposed viticultural area boundary based on USGS map markings.
Jim Butler of Butler Winery in Bloomington, Indiana submitted a petition to establish the approximately 4,800-square mile Indiana Uplands American viticultural area in south-central Indiana. The proposed Indiana Uplands viticultural area contains 19 vineyards with approximately 200 acres under cultivation, 2 planned vineyards of 15 to 20 acres each, and 17 wineries; the existing and planned vineyards are geographically distributed throughout the proposed viticultural area, according to a map submitted with the petition. Unless otherwise noted, all information and data set forth below are from the petition for the proposed Indiana Uplands viticultural area and its supporting exhibits.
Spanning 110 miles north to south beginning at the line that separates Morgan and Monroe Counties, the proposed Indiana Uplands viticultural area extends south to the Ohio River at the Kentucky border. The proposed viticultural area extends approximately 63 miles east to west at its widest point, from Clark County to Martin County. Nineteen Indiana counties are located partially or totally within the proposed viticultural area: Monroe, Brown, Morgan, Owens, Greene, Lawrence, Bartholomew, Orange, Washington, Floyd, Harrison, Perry, Crawford, Jackson, Martin, Daviess, Dubois, Scott, and Spencer.
TTB notes that approximately 1,530 square miles in the southern portion of the proposed Indiana Uplands viticultural area is currently within the approximately 26,000-square mile Ohio River Valley viticultural area (27 CFR 9.78). The Ohio River Valley viticultural area encompasses the broad valley surrounding the Ohio River in Indiana, Kentucky, Ohio, and part of West Virginia; see T.D. ATF–144, published in the
The “Indiana Uplands” geographic name was first commonly used for the region in which the proposed viticultural area is located beginning in the 1920s, and today that region is still referred to as the “Indiana Uplands.” For example, Paul Harris, the founder of Rotary International, wrote that “[w]e had never even thought it possible that there could be country of such remarkable scenic interest so near to Chicago and yet so little advertised. Surely the much-heralded Berkshire hills have nothing on this wonderful stretch of Indiana uplands” (“A Sentimental Journey through Hoosierdom,” Rotary Globe History Fellowship, 1924, available at
Further, some publications have recognized the distinctiveness of the Indiana Uplands region as compared to the surrounding areas. As stated in a visitors' brochure, “Bloomington is nestled in the hills of the Indiana Uplands. These unglaciated hills extend from north of Bloomington southward to the Ohio River” (Monroe County Convention and Visitors Bureau brochure, undated). [TTB notes that Bloomington is located in the north-central portion of the proposed viticultural area, as shown on the Bloomington USGS map.] An article in the Bloomington Herald Times similarly
Between 1843 and 1846, Simon Huber planted vineyards and orchards in Starlight, Floyd County, Indiana, and he commercially produced wine until the early 1900s (Ted Huber, in an April 2006 interview with the petitioner). During that same era, five miles south of the Huber vineyard, “Pop” Stumler also grew grapes and made and marketed wine. Each winemaker produced approximately 1,000 gallons of wine annually. The 1880 census reported that 26,000 gallons of wine were produced within the Indiana Uplands region that year, which constituted approximately one quarter of the wine produced in Indiana. Winemaking in the region continued in the 1890s and early 1900s, with John Sacksteder producing 10,000 gallons of wine annually in Leavenworth, Perry County, Indiana (Richard Sacksteder, in a January 2002 letter to the petitioner), which included the ceremonial wine for the Roman Catholic Diocese of Kentucky.
Prohibition halted the commercial production of wine in the Indiana Uplands region, but grape growing in the region regained popularity beginning in the 1960s. In 1966, grapevines were planted at the Oliver Winery northwest of Bloomington; in 1971, grapevines were planted at the Easley Winery at Cape Sandy near the Ohio River and the Possum Trot Winery near Unionville; and, in 1987, the Huber family started replanting grapevines.
The proposed Indiana Uplands viticultural area encompasses a plateau landform that contains elevations between 200 and 600 feet above the surrounding regions; the proposed boundary line generally follows the contour lines at the base of the plateau. Where the edges of the plateau lack sharp changes in elevation, or where contour lines greatly meander, the proposed boundary line follows features such as county borders, roads, railroad tracks, and rivers, or follows straight lines between points found on the appropriate USGS maps. The proposed Indiana Uplands viticultural area contains three physiographic divisions: the Crawford Upland, the Norman Upland, and the Mitchell Plateau (“Map of Indiana Showing Physiographic Divisions,” Henry H. Gray, Indiana Geological Survey, 2001).
The western portion of the boundary line of the proposed Indiana Uplands viticultural area approximates the boundary between the physiographic regions of the Crawford Upland on the Indiana Uplands plateau within the proposed viticultural area and the Boonville Hills and Wabash Lowland to the west outside of the proposed viticultural area (
Specifically, the proposed Indiana Uplands viticultural area boundary begins at the confluence of the Anderson River with the Ohio River at Troy, then proceeds north-northwest in a straight line to the junction of State Roads 62 and 162, north of Santa Claus. It then follows State Road 162 north to Jasper, then U.S. 231 north to Bloomfield, where it then largely follows the 180-meter contour line northeast along the White River flood plain to the southwest corner of Morgan County. The proposed boundary then follows the 200-meter contour line easterly along the White River and Indian Creek flood plains to State Road 135. The boundary then follows the Brown County line to the county's northeastern corner.
The proposed Indiana Uplands viticultural area boundary then proceeds south along several straight lines and State Road 58 to just past the Bartholomew–Jackson county line (passing east of Harrison, Grandview, and Lutheran Lakes), then follows the 200-meter contour line, U.S. 50, and State Road 235 to Medora. The boundary then proceeds southwest along a railroad to Sparksville, then runs east to Millport, then southeasterly to Pumpkin Center, then follows a straight line south to Old State Road 56, then follows that road and S. Bloomington Trail to Leota, and then continues in a straight line to Interstate 65 at Underwood. The proposed boundary then proceeds south-southwest in a straight line to State Route 60 at Carwood, and then follows State Routes 60 and 111 south to St. Joseph, where it then proceeds southerly along straight lines through Bald Knob and Lost Knob before proceeding south in a straight line, passing along the western edge of New Albany, to the confluence of French Creek with the Ohio River in Franklin Township, just southwest of New Albany. The proposed boundary then follows the Indiana shoreline of the Ohio River westward (downstream) to its beginning point at the mouth of the Anderson River at Troy.
TTB made several modifications to the petitioned-for boundary in order to use more easily-located features that appear on the USGS maps used to determine the boundaries of both the proposed Indiana Uplands viticultural area and the established Ohio River viticultural area, and to more closely conform the proposed boundary to the base of the Indiana Uplands plateau. The Indiana Uplands petitioner has agreed to the suggested changes.
The distinguishing features of the proposed Indiana Uplands viticultural area include its geology, topography, comparatively high plateau elevations, thin residual soils mantled with loess, and a distinctively cool growing season climate. In contrast to the proposed viticultural area, the surrounding regions outside of it have lower elevations, evidence of repeated glacial advances, and different soils and topography. In addition, the surrounding regions to the east, south, and west of the Indiana Uplands plateau have a warmer growing season climate.
The underlying bedrock of the proposed Indiana Uplands viticultural area is a factor that contributes to its uniqueness as a grape-growing area because the bedrock influences the area's distinctive topography, climate, and soils. The bedrock, which was formed in a shallow inland sea during
During the Illinoian glacial advance, glaciers advanced up to and proceeded around the proposed Indiana Uplands viticultural area on its west, north, and east sides, leaving relatively higher elevations on the plateau landform as compared to the rest of Indiana. Over time, the plateau remained free from glacial advances due to the height of the plateau. Several studies that attempted to define the perimeter of the glacier boundary line surrounding the Indiana Uplands region produced somewhat differing results; as a result, the boundary line of the proposed Indiana Uplands viticultural area follows a conservative estimate of glacial advances and conforms to the physiographic units of the region (“Physiography of Eastern United States,” Nevin Fenneman, McGraw–Hill Book Co., 1938).
Due to the lack of glaciations in the region, the topography of the proposed Indiana Uplands viticultural area strongly reflects the structure of its bedrock. As a result, the landforms within the Indiana Uplands plateau region were primarily created by the weathering and stream erosion of the bedrock, which created the steep valleys and high ridges that are common throughout the area. Although the Indiana Uplands region was generally not glaciated, there was some glacial intrusion around the edges of the plateau, resulting in a thin layer of glacial drift over the bedrock in those areas.
The proposed Indiana Uplands viticultural area plateau landscape contains numerous creeks that feed into lakes and rivers, according to the USGS maps. The terrain is generally hilly throughout the region, especially in the rural forests, parks, and wilderness areas. In addition, according to the USGS maps, steep ridges predominate along much of the boundary line, marking where the plateau descends to the surrounding lower elevations. At the approximate center of the proposed Indiana Uplands viticultural area are the Hoosier National Forest and Monroe Lake, which are surrounded by other forests, parks, lakes, and recreation areas, according to the USGS maps.
According to USGS maps, the plateau that comprises the proposed Indiana Uplands viticultural area gradually descends from an elevation of 1,033 feet in the northeast corner to an elevation of 358 feet in the southwest corner, although glacial till deposits moderate some differences in elevations along the proposed boundary line. The Ohio River bluffs rise to a height of 600 feet above the water line in some areas within the proposed viticultural area.
As shown in the below table, which TTB created based on data and USGS maps submitted with the petition, elevations generally are higher within the proposed viticultural area than in the surrounding areas.
Elevations in the northeast portion of the Indiana Uplands plateau generally reach 850 to 950 feet, and the Knobstone Escarpment, which defines part of the eastern and northern portions of the proposed boundary line, reaches an elevation of approximately 1,000 feet, according to USGS maps. Elevations in the southeast portion of the proposed Indiana Uplands viticultural area generally vary between 450 and 600 feet. The lowest point in the proposed viticultural area is at an elevation of 358 feet at the confluence of the Anderson and Ohio Rivers in the southwestern corner of the proposed viticultural area, according to USGS maps.
As noted above, there are three physiographic units within the proposed Indiana Uplands viticultural area: The Norman Upland, the Mitchell Plateau, and the Crawford Upland (“Natural Features of Indiana,”
By contrast, the surrounding areas to the east, north, and west contain different physiographic units, which similarly affect the topography and soils in those areas. The Illinoian glacial advance stopped before reaching the Boonville Hills to the southwest of the Indiana Uplands, where windblown sand and silt cover the predominant undulating topography. The wider valleys of the Boonville Hills are characterized by island-like masses of bedrock covering several square miles that rise 100 to 150 feet above the surrounding areas.
To the east of the proposed viticultural area, relatively nonresistant late Devonian and early Mississippian shales underlie the low relief of the Scottsburg Lowland, with elevations below the proposed viticultural area ranging from approximately 750 feet to the northeast of the proposed viticultural area to 500 feet to the southeast of the proposed viticultural area. The northern portion of the Scottsburg Lowland is partially filled with up to 150 feet of glacial drift, which reduces the elevation differential compared to the Indiana Uplands plateau to 150 feet in that area.
The area to the north of the Indiana Uplands area, recently designated as the Martinsville Hills, contains thick glacial deposits that nearly obscure the general form of the bedrock units (“Natural Features of Indiana,”
The proposed Indiana Uplands viticultural area contains soils formed predominantly in discontinuous loess over weathered sandstone, shale, or limestone (“Map of the Soils Regions of Indiana,” in “Adaptability of Tillage-Planting Systems of Indiana Soils,” G.C. Steinhardt, D.R. Griffith, and J.V. Mannering, Agronomy Department,
The predominant soil types in the proposed Indiana Uplands viticultural area belong to the red-yellow podzolic soil group (“Natural Features of Indiana,”
The erosion rate of the soils in the Indiana Uplands region exceeds that of soils located in other areas of Indiana (“Climate of Indiana,” S.S. Visher, Science Series No. 13, Indiana University Publications, 1944, pp. 373–374). Erosion is a significant problem in the Indiana Uplands region due to: (1) Its commonly steep, rugged terrain; (2) the greater incidence of heavy rains than in other areas of the state; and (3) poor farming practices in the 1800s. These factors have caused a depletion in the quantity of topsoil in the ridges and hilltops in the region, which results in a significant decrease in the potential productivity of the soils in the proposed Indiana Uplands viticultural area for general agricultural purposes.
Two general soil associations formed in the region encompassed by the proposed Indiana Uplands viticultural area (“Natural Features of Indiana,”
To the east of the proposed Indiana Uplands viticultural area, the soils formed in moderately thick loess over weathered loamy glacial till (“Natural Features of Indiana,”
Although the thin, acidic, and in some places poorly drained soils of the Indiana Uplands region are not suited to most types of farming without liming, deep plowing, or installation of tile drainage in areas with hardpans, these soils are not incompatible with grape growing. As Albert J. Winkler stated, “[t]he largest vines and the heaviest crops are produced on deep, fertile soils. The quality of fruit is better, although the yields are usually lower, on soils of lower fertility or soils limited in depth by hardpan, rocks, or clay strata” (“General Viticulture,” Albert J. Winkler, University of California Press, 1974, p. 71). Similarly, although the soils in the proposed Indiana Uplands viticultural area are thinner and less productive than those in surrounding regions, the petitioner notes that they should produce quality fruit and wines of a distinctive character.
The elevations and topography of the proposed Indiana Uplands viticultural area contribute to the unique climatic conditions within the proposed viticultural area. Cold air drainage from vineyards on the hilltops and ridges of the elevated plateau landform flows as much as 350 feet to the valleys below, creating air movement, limiting frost accumulation in the vineyards, and extending the growing season in spring and fall. In addition, the hilltops and ridges in the area catch breezes that keep the fruit dry and free of fungus and mildew. Consequently, as described below, air temperature and precipitation are distinguishing climatic features of the proposed Indiana Uplands viticultural area.
As shown in the below table, which TTB prepared based on data and a map submitted with the petition, temperatures and GDDs on the Indiana Uplands plateau are generally lower than in most areas outside the plateau; only the adjacent northwest area has cooler growing conditions. According to this data, most of the proposed viticultural area is located in climatic region III, with some region IV areas on the western and southern margins. By contrast, the surrounding areas outside of the proposed viticultural area generally are in region IV.
As previously noted, over time, the heavier precipitation in the region has contributed to greater soil erosion on the Indiana Uplands plateau than in other parts of the state as well as an increased breakdown of organic material in the soil. The increased precipitation does not negatively affect grape-growing in the region, however, because the heaviest precipitation occurs from November through May (according to data from the National Climactic Data Center (1971–2000)). The annual rainfall in the proposed Indiana Uplands viticultural area is approximately the same from June through October as compared to the rest of Indiana, resulting in relatively dry soils for the important grape ripening months of August, September, and October.
TTB concludes that the petition to establish the approximately 4,800-square mile Indiana Uplands viticultural area merits consideration and public comment as invited in this notice. Consistent with 27 CFR 9.12(b), however, TTB considered whether the features of the portion of the proposed Indiana Uplands viticultural area that overlaps the established Ohio River viticultural area are so clearly distinguished from the larger Ohio River Valley viticultural area that wine produced from grapes grown within the overlap area should no longer be entitled to use the name of the Ohio River Valley viticultural area as an appellation of origin or in a brand name if the proposed Indiana Uplands viticultural area is established. Accordingly, the following sections of this preamble: (1) Provide an overview of the existing Ohio River Valley viticultural area; (2) contrast the distinguishing features of the Ohio River Valley viticultural area to those of the proposed Indiana Uplands viticultural area; and (3) discuss a proposed modification of the boundary of the Ohio River Valley viticultural area.
According to T.D. ATF–144, the currently established approximately 26,000-square mile Ohio River Valley viticultural area includes extensive valley areas on both sides of the Ohio River, covering portions of Indiana, Kentucky, Ohio, and West Virginia, extending from Valley Grove, West Virginia to the convergence of the Kentucky, Illinois, and Indiana state lines at the confluence of the Wabash and Ohio Rivers. In Indiana, the boundary line of the Ohio River Valley viticultural area runs diagonally northeast-to-southwest, and in some areas the boundary line extends approximately 32 miles northward from the Ohio River, as shown on USGS maps.
TTB notes that the 943-mile-long Ohio River starts at the confluence of the Allegheny and Monongahela Rivers at Point State Park in Pittsburgh, Pennsylvania and flows generally southwest, joining the Mississippi River at Cairo, Illinois. According to T.D. ATF–144, the Ohio River Valley viticultural area is characterized by a distinctive rainfall pattern that includes accumulations in excess of 2.5 inches within a 24-hour period each month, except in October. T.D. ATF–144 further states that the moderate to slow permeability of the dominant, gray-brown podzolic soils and the general topography of the valley result in rapid runoff during intensive rains.
In addition, according to T.D. ATF–144, winds that originate in the Gulf of Mexico travel up the river valley from the Mississippi Valley, resulting in a more moderate climate with less dramatic temperature extremes during the growing season than other areas of similar latitude. The petition for the establishment of the Ohio River Valley viticultural area (ORV petition) notes that the riverine climate and upstream winds help prevent excessive moisture from damaging crops, and the surrounding areas protect the river valley against weather extremes. Vineyards in the Ohio River Valley region are commonly located on hillsides that absorb the sun's warmth and provide optimum growing conditions, according to the ORV petition.
Based on TTB's review of the evidence and other information provided in the ORV petition and the petition and evidence submitted in support of the proposed Indiana Uplands viticultural area, the geology, topography, soils, and climate of each area are distinguishable.
Although T.D. ATF–144 does not specifically address the geology of the Ohio River Valley viticultural area, the geological history of the Ohio River Valley region was discussed in the ORV petition. According to the ORV petition, the Ohio River was created by the impact of glaciers in the Ohio region during the last Ice Age. Prior to the Ice Age, there were only other rivers and streams in the Ohio area, with high ridges located between segments of what became the Ohio River. The ORV petition explains that glaciers later blocked the northward flow of rivers in the region, causing them to form large inland glacial lakes. Eventually, the dammed up lakes reached elevations that caused the water to start eroding new, southwesterly channels. Then, as the great ice sheet began to melt during the Ice Age thaw, enormous amounts of water were released into the lakes of Ohio, and the resulting torrent of water, ice, sand, gravel, and boulders sculpted wide creek beds and crushed the glacial lake dams. The ORV petition states that this deluge further deepened and widened the new river valley to approximately the current shape and location of the Ohio River.
In contrast, as noted above, the proposed Indiana Uplands viticultural area encompasses a continuous plateau of unglaciated bedrock. As described in the Indiana Uplands petition, the Indiana Uplands plateau formed 345 to 325 million years ago from an inland sea, and, during the last Ice Age, the elevated, bedrock-controlled plateau deflected repeated glaciations from the west, north, and east. These glaciations reached only to the edges of the plateau, and largely did not affect the Indiana Uplands region. The terrain of the Indiana Uplands plateau generally was formed by weathering and stream erosion, in contrast to the glacial effects that created the Ohio River Valley.
Based on a review of the ORV petition, the petition for the proposed Indiana Uplands viticultural area, and the relevant USGS maps, TTB believes that the topography within the Ohio River Valley viticultural area also differs from that within the proposed Indiana Uplands viticultural area. The currently approved 26,000-square mile Ohio River Valley viticultural area is characterized by a long river with many tributaries and an expansive valley; in contrast, the 4,800-square mile proposed Indiana Uplands viticultural area is
T.D. ATF–144, the ORV petition, and the petition for the proposed Indiana Uplands viticultural area provide evidence that the predominant soils within the Ohio River Valley viticultural area are significantly different from those in the Indiana Uplands plateau. According to T.D. ATF–144, gray-brown podzolic soils are predominant on the ridges, hills, and slopes of the Ohio River Valley viticultural area. After intensive rainfall, the slow to moderate permeability of these soils and the valley topography cause rapid runoff and prevent a flood hazard.
In contrast, red-yellow podzolic soils predominate within the proposed Indiana Uplands viticultural area, according to the Indiana Uplands petition. These soils formed in discontinuous loess over weathered sandstone, shale, and limestone, and have moderate permeability. In addition, the Indiana Uplands petition states that the soil types found in the proposed Indiana Uplands viticultural area are more common on the unglaciated Indiana Uplands plateau than they are in surrounding areas, and they have a higher erosion rate than soils in other, more glaciated areas of Indiana.
The climate within the Ohio River Valley viticultural area also appears to differ from that of the proposed Indiana Uplands viticultural area. According to T.D. ATF–144, the Ohio River Valley viticultural area climate is characterized by a distinctive rainfall pattern (called “Ohio Type”) and is influenced by wind. In the “Ohio Type” climate, the Ohio River Valley can receive accumulations in excess of 2.5 inches within a 24-hour period each month, except in October. Such rainfalls would cause a severe flood hazard but for the moderate to slow permeability of the predominant soils and the geography of the river valley, which permits rapid runoff after intensive rainfall. T.D. ATF–144 also states that the climate of the Ohio River Valley viticultural area is further distinguished by winds that originate in the Gulf of Mexico, travel northeast through the Mississippi River Valley, and pass through the Ohio River Valley. As a result, the climate within a few miles of the river is more moderate and has less dramatic temperature extremes during the growing season as compared to other areas of similar latitude.
According to the Indiana Uplands petition, the average annual precipitation in the proposed Indiana Uplands viticultural area is 47 inches, which is higher than in other areas of Indiana. However, this represents 13 inches less precipitation annually than the Ohio River Valley viticultural area, according to TTB research using the long-term database of the Midwestern Regional Climate Center (MRCC) in cooperation with the Illinois State Water Survey and National Climatic Data Center. TTB further notes that the Indiana Uplands plateau does not appear to be affected by the consistent wind pattern and the “Ohio Type” rainfall pattern that characterize the weather of the Ohio River Valley viticultural area.
In addition, as shown in the below table, growing season temperatures are generally significantly lower on the Indiana Uplands plateau than in the Ohio River Valley viticultural area.
Based on the evidence summarized above, TTB believes that there are significant differences between the distinguishing features of the Ohio River Valley viticultural area and those of the proposed Indiana Uplands viticultural area. In addition, the Indiana Uplands petition presents evidence that the geology, soils, topography, and climate of the proposed viticultural area are largely consistent throughout the proposed Indiana Uplands viticultural area—including the area that is currently within the Ohio River Valley viticultural area—and are distinctive when compared to the large Ohio River Valley viticultural area.
Accordingly, TTB believes that there is a valid basis to conclude that the features of that portion of the proposed Indiana Uplands viticultural area that is currently within the Ohio River Valley viticultural area are sufficiently distinct from those of the larger Ohio River Valley viticultural area as to no longer warrant the inclusion of that portion within the boundary of the Ohio River Valley viticultural area. TTB therefore proposes the modification of the boundary of the Ohio River Valley viticultural area so as not to include the 1,538-square mile area that would overlap the proposed Indiana Uplands viticultural area if the Indiana Uplands viticultural area were to be established as proposed in the petition.
The petitioner for the proposed Indiana Uplands viticultural area has advised TTB that he supports the proposed modification of the boundary of the Ohio River Valley viticultural area. In communications with TTB, the Indiana Uplands petitioner agreed that there are significant differences between the two areas as regards the distinguishing features, and he concluded that a modification of the boundary of the Ohio River Valley viticultural area would be warranted if the proposed Indiana Uplands viticultural area is established.
At TTB's request, the petitioner obtained letters from the 11 wineries and vineyards that would be affected by the proposed modification of the Ohio River Valley viticultural area, all of which indicate agreement with the proposed modification. In their letters, the vineyard owners also indicate their willingness to no longer to use “Ohio River Valley” as an appellation of origin for wine produced from their grapes if the boundary is modified as proposed in this notice.
The portion of the proposed Indiana Uplands viticultural area that is currently within the Ohio River Valley viticultural area extends, at the widest points, approximately 53 miles east-to-west and 42 miles north-to-south. Seven Indiana counties are partially or totally within the area affected by the proposed modification of the Ohio River Valley viticultural area: Washington, Clark, Floyd, Harrison, Perry, Crawford, Scott, and Spencer Counties.
The USGS maps used to define the Ohio River Valley viticultural area are regional maps on a scale of 1:250,000 feet. The maps used to define the Indiana Uplands viticultural area petition are on a scale of 1:100,000 meters on 30- x 60-minute quadrangles. For consistency, the description of the proposed Ohio River Valley viticultural area boundary modification is presented in the below paragraph in the same manner and direction as the existing
The beginning point of the proposed modification of the Ohio River Valley viticultural area is on the Vincennes map where State Road 162 diverges northerly from U.S. Route 460 (locally known today as State Road 62) in Spencer County, Indiana. From that point, the proposed concurrent boundary line for the Indiana Uplands-Ohio River Valley viticultural areas follows a straight line south-southeast onto the Evansville map to the confluence of the Anderson River with the Ohio River just west of Troy, Indiana. The concurrent boundary line then continues generally eastward (upstream) along the Indiana shoreline of the Ohio River, crosses over and back on the Vincennes map, and onto the Louisville map, to the mouth of French Creek in Franklin Township, Floyd County, Indiana (just downstream from New Albany).
The concurrent boundary line then follows a straight line north through Lost Knob and Bald Knob to St. Joseph on State Road 111, where it then follows State Road 111 and 60 north to Carwood, Indiana, and then goes north-easterly in a straight line to the Interstate 65 exit for Underwood, Indiana. From Underwood, the concurrent boundary proceeds northwest in a straight line to the cross-roads village of Leota. At Leota, the Ohio River Valley viticultural area boundary line turns to the northeast and continues in a straight line to New Marion in Ripley County, Indiana, while the proposed Indiana Uplands boundary proceeds west and then north to Pumpkin Center and then northwesterly toward Millport on the Muscatatuck River, which is, at this point, concurrent with the boundary between Jackson and Washington Counties, Indiana.
For the reasons stated above, TTB believes that the proposed modification of the boundary of the Ohio River Valley viticultural area also merits consideration and public comment as invited in this notice. The proposed modification of the boundary of the Ohio River Valley viticultural area would only take effect upon the establishment of the proposed Indiana Uplands viticultural area.
See the narrative boundary description of the petitioned-for Indiana Uplands viticultural area and the proposed modification of the Ohio River Valley viticultural area boundary in the proposed regulatory texts published at the end of this notice.
The Indiana Uplands petitioner provided the required maps, and TTB lists them below in the proposed regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If this proposed viticultural area is established, its name, “Indiana Uplands,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the proposed regulation clarifies this point.
TTB does not believe that any single part of the proposed viticultural area name standing alone, that is, “Indiana” or “Uplands,” would have viticultural significance in relation to this proposed viticultural area because “Indiana,” standing alone, is locally and nationally known as referring to the State of Indiana, which is already a term of viticultural significance as an appellation of origin under 27 CFR 4.25(a)(1)(ii), which provides that a State is an American appellation of origin, and under 27 CFR 4.39(i)(3), which states that “[a] name has viticultural significance when it is the name of a state * * *”, and because the term “uplands” refers to a common geographical landform found in many locations in the United States and internationally.
If this proposed regulatory text is adopted as a final rule, wine bottlers using “Indiana Uplands” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use “Indiana Uplands” as an appellation of origin.
For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term identified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with the viticultural area name or other viticulturally significant term and that name or term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other viticulturally significant term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.
Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
If the proposals to establish the Indiana Uplands viticultural area and to modify the boundary of the Ohio River Valley viticultural area are adopted as a final rule, a transition rule will apply to labels for wines produced from grapes grown in the area removed from the Ohio River Valley viticultural area. A label containing the words “Ohio River Valley” in the brand name or as an appellation of origin may be used on wine bottled within two years from the effective date of the final rule, provided that such label was approved prior to the effective date of the final rule and that the wine conforms to the standards for use of the label set forth in 27 CFR 4.25 or 4.39(i) in effect prior to the final rule. At the end of this two-year transition period, if a wine is no longer eligible for labeling with the Ohio River Valley viticultural area name (
TTB invites comments from interested members of the public on whether TTB should establish the proposed Indiana Uplands viticultural area and modify the boundary of the Ohio River Valley viticultural area. TTB is also interested in receiving comments on the sufficiency and accuracy of evidence for the Indiana Uplands name, boundary, geology, topography, soils, climate, and other required information submitted in support of the petition. TTB is
Because of the potential impact of the establishment of the proposed Indiana Uplands viticultural area on wine labels that include the words “Indiana Uplands” as discussed above under “Impact on Current Wine Labels,” TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. Also, those industry members with wine labels potentially affected by the modification of the Ohio River Valley viticultural area boundary are encouraged to submit comments. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any negative economic impact that approval of the proposed viticultural area or boundary modification will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid any conflicts, for example, by adopting a modified or different name or boundary for either viticultural area.
You may submit comments on this notice by using one of the following three methods:
•
•
•
Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 129 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.
If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
On the Federal e-rulemaking portal, Regulations.gov, TTB will post, and you may view, copies of this notice, selected supporting materials, and any electronic or mailed comments TTB receives about this proposal. A direct link to the Regulations.gov docket containing this notice and the posted comments received on it is available on the TTB Web site at
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that TTB considers unsuitable for posting.
You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Box 12, Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact our information specialist at the above address or by telephone at 202–453–2270 to schedule an appointment or to request copies of comments or other materials.
TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.
Elisabeth C. Kann of the Regulations and Rulings Division drafted this notice.
Wine.
For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:
1. The authority citation for part 9 continues to read as follows:
27 U.S.C. 205.
2. Amend section 9.78 by:
a. Revising the introductory paragraph of paragraph (c) and paragraphs (c)(5) and (c)(6);
b. Redesignating paragraphs (c)(7) through (c)(21) as paragraphs (c)(11) through (c)(25); and
c. Adding new paragraphs (c)(7), (c)(8), (c)(9), (c)(10), and (d).
The revisions and additions read as follows:
(c)
(5) The boundary proceeds in a straight line southeasterly to the confluence of the Anderson River with the Ohio River at Troy, Indiana (Evansville map).
(6) The boundary proceeds generally eastward along the Indiana shoreline of the Ohio River (Evansville and Vincennes maps) to the mouth of French Creek in Franklin Township, Floyd County, Indiana (Louisville map).
(7) From the mouth of French Creek, the boundary proceeds northerly in a straight line to the peak of Lost Knob, then continues north-northeasterly in a straight line through the peak of Bald Knob to the junction of State Route 111 and a road locally known as W. St. Joe Road at St. Joseph in New Albany Township, Floyd County, Indiana (Louisville map).
(8) The boundary then proceeds north on State Route 111 to State Route 60 at Bennettsville in Clark County, Indiana, then westerly on State Route 60 to Carwood, and then northerly in a straight line to the point where the Clark–Scott county line crosses Interstate 65 at Underwood, Indiana (Louisville map).
(9) The boundary proceeds northwesterly in a straight line to Leota in Scott County, Indiana (Louisville map).
(10) The boundary proceeds in a straight northeast line to the town of New Marion in Ripley County, Indiana (Cincinnati map).
(d)
3. Subpart C is amended by adding § 9.__ to read as follows:
(a)
(b)
(1) Tell City, Indiana-Kentucky, 1991;
(2) Jasper, Indiana-Kentucky, 1994;
(3) Bedford, Indiana, 1990;
(4) Bloomington, Indiana, 1986; Photoinspected 1988;
(5) Madison, Indiana-Kentucky, 1990; and
(6) Louisville, Kentucky-Indiana, 1986.
(c)
(1) The beginning point is on the Tell City map at the confluence of the Anderson River with the Ohio River near Troy in Perry County. From the beginning point, proceed north-northwesterly in a straight line, crossing to the Jasper map, to the intersection of State Roads 62 and 162, approximately 3.5 miles north of Santa Claus; then
(2) Proceed north on State Road 162 to its intersection with U.S. Route 231 in Jasper; then
(3) Proceed north on U.S. Route 231, crossing to the Bedford map and the Bloomington map, to the intersection of U.S. Route 231 with the 180-meter contour line in Bloomfield, approximately 0.3 mile south of State Road 54; then
(4) From the west side of State Road 54, proceed northerly along the meandering 180-meter contour line, and, after crossing the Owen-Greene county boundary line, continue northeasterly along the contour line to its intersection with the Monroe-Owen county boundary line approximately 1 mile south of the confluence of Big Creek and the White River; then
(5) Proceed north, then northeasterly, and then south along the Monroe-Owen county boundary line to its intersection with the 200-meter contour line, approximately 0.3 mile south of the White River; then
(6) Proceed easterly along the meandering 200-meter contour line to its intersection with State Road 135, south of Morgantown and approximately 0.8 mile north of the Morgan-Brown county boundary line; then
(7) Proceed south on State Road 135 to the Morgan-Brown county boundary line; then
(8) Proceed east along the Brown-Johnson county boundary line to its intersection with the Brown-Bartholomew county boundary line; then
(9) Proceed south-southeasterly in a straight line to the intersection of State Road 46 and a road locally known as N. County Club Road, approximately 1 mile north of Harrison Lake in western Bartholomew County; then
(10) Proceed south-southwesterly in a straight line to the intersection of State Road 58 and the Bartholomew-Jackson county boundary line; then
(11) Proceed east along the Bartholomew-Jackson county boundary line for approximately 0.4 mile to the county boundary line's first intersection with the meandering 200-meter contour line after crossing Buck Creek in northwestern Jackson County; then
(12) Proceed easterly then southwesterly along the meandering 200-meter contour line, crossing to the Bedford map, to the intersection of the contour line with U.S. Route 50; then
(13) Proceed east on U.S. Route 50 to its intersection with State Road 235; then
(14) Proceed south on State Road 235 to its intersection with the railroad tracks in Medora; then
(15) Proceed southwesterly along the railroad tracks to their closest approach to the bridge over the East Fork of the White River located approximately 0.5 miles east (upstream) of Sparksville (locally known as the Sparks Ferry Road bridge); then
(16) Proceed easterly along the East Fork of the White River and then the Muscatatuck River to the State Road 135 bridge over the Muscatatuck River at Millport; then
(17) Proceed easterly in a straight line to the confluence of the Cammie Thomas Ditch with the Muscatatuck River, located on the northern boundary of Washington County; then
(18) Proceed southeasterly in a straight line, crossing to the Madison map, to the intersection of two roads locally known as E. Pull Tight Road and N. Pumpkin Center East Road at Pumpkin Center in Gibson Township, Washington County; then
(19) Proceed due south in a straight line for approximately 4.5 miles to the line's intersection with a road locally known as E. Old State Road 56; then
(20) Proceed easterly and then northeasterly on E. Old State Road 56 to its intersection with a road locally known in Scott County as S. Bloomington Trail, and then continue
(21) Proceed southeasterly in a straight line to the intersection of Interstate 65 and the Scott-Clark counties boundary line at Underwood; then
(22) Proceed south-southwesterly in a straight line, crossing to the Louisville map, to the intersection of State Road 60 and a road known locally as Carwood Road at Carwood in Clark County; then
(23) Proceed southeasterly on State Road 60 to its intersection with State Road 111 at Bennettsville; then
(24) Proceed southerly on State Road 111 for approximately 1.8 miles to its intersection with a road locally known as W. St. Joe Road at St. Joseph; then
(25) Proceed south-southwesterly in a straight line to the 266-meter elevation point on Bald Knob, then continue south-southwesterly in a straight line to the 276-meter elevation point on Lost Knob; then
(26) Proceed southerly in a straight line to the confluence of French Creek with the Ohio River in eastern Franklin Township, Floyd County; then
(27) Proceed (downstream) along the Indiana shoreline of the Ohio River, crossing back and forth between the Tell City and Jasper maps, returning to the beginning point.
Federal Communications Commission.
Petition for partial reconsideration.
In this document, the Federal Communication Commission's (Commission) Public Safety and Homeland Security Bureau (Bureau) gives notice that the American Cable Association (ACA) has filed a petition for partial reconsideration of the Commission's Emergency Alert System (EAS)
Oppositions/Comments are due on or before June 25, 2012 and replies are due on or before July 3, 2012.
You may submit comments, identified by EB Docket No. 04–296 by any of the following methods:
•
•
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington DC 20554.
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
Gregory M. Cooke, Associate Chief, Policy Division, Public Safety and Homeland Security Bureau, at (202) 418–2351, or by email at
This is a summary of the Commission's Public Notice in EB Docket No. 04–296, DA 12–834, released on May 25, 2012. This document is available to the public at
1. On April 23, 2012, the Commission received a petition filed by the ACA for partial reconsideration of that portion of the Commission's EAS
2. The
3. In its Petition, ACA argues that the Commission's foregoing presumption would “not provide meaningful relief for * * * small operators” due to the “need to devote significant administrative resources to preparing waiver requests.” ACA argues that to
• A statement that the cable operator currently does not have physical access to a wireline broadband connection at the system head-end.
• A statement that obtaining physical access to a wireline broadband connection would require costs in excess of a provider's normal installation drop fee (i.e. special construction costs or line extension fees).”
ACA argues that “[w]aivers granted pursuant to this process should be granted for at least a period of one year, with renewal years available, or until the operator: (i) Obtains broadband Internet service at the system headend; or (ii) can obtain broadband Internet service without incurring additional construction or set-up fees, such as line extension charges.”
4. The Commission seeks comment on ACA's Petition. It also seeks comment on several specific issues. First, it notes that the its
5. The Commission also seeks comment on ACA's suggestion that the Commission should, at least in part, consider the costs to EAS Participants of obtaining broadband Internet access service when assessing whether to grant waiver relief. If so, how should the Commission weigh such cost in this assessment? For example, ACA requests that the Commission waive CAP compliance for cable systems serving fewer than 501 subscribers if the cost of broadband access is “in excess of a provider's normal installation drop fee (i.e. special construction costs or line extension fees).” Is this the proper criterion for such an assessment? If not, what specific costs should the Commission consider to make such an assessment? Should such an assessment be dependent on the financial condition of the petitioner? If so, what standard should the Commission use for assessing whether a waiver is warranted based on financial condition? How much and what kind of information about a petitioner's financial condition should be submitted in support of a waiver request? Should information as to where the waiver applicant is in its EAS equipment replacement cycle be a factor in the Commission's analysis? Should factual statements in the waiver request be certified by a corporate officer, rather than some other representative? Does the proposed one-year period for waivers, terminable once broadband access becomes available without “additional construction or set-up fees,” adequately address the Commission's concerns about changing circumstances? Would a six-month reporting condition, attesting to the continuing compliance with the original conditions, be a better way of addressing those concerns without adding unnecessary costs?
6. Finally, in its petition, ACA proposes that those filing a waiver certification include “[a]n affirmation that the operator understands it must continue to operate its legacy EAS equipment.” Is this criterion sufficient to ensure that subscribers remain able to receive timely and accurate EAS alerts? Should the Commission, for example, require that the waiver certification include an affirmation that the cable operator continues to operate legacy EAS equipment that is capable of receiving and transmitting the Emergency Action Notification?
7. This matter is subject to the “permit-but-disclose” provisions of the Commission's
8. Interested parties may file oppositions and other comments and reply comments on or before the dates indicated on the first page of this document. All pleadings must reference EB Docket No. 04–296. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
9. People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
10. Address all filings to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street SW., Room TW–A325, Washington, DC 20554. Parties should also send a copy of their filings to Gregory Cooke, Policy and Licensing Division, Public Safety and Homeland Security Bureau, Federal Communications Commission, Room 7–A744, 445 12th Street SW., Washington, DC 20554, or by email to
11. Documents in EB Docket No. 04–296 are available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St. SW., Room CY–A257, Washington, DC 20554. The documents are available for purchase from BCPI, telephone (202) 488–5300, facsimile (202) 488–5563, TTY (202) 488–5562, email
Federal Communications Commission.
Proposed rule.
The Commission has before it a petition for rulemaking filed by ION Media Greenville License, Inc. (“ION”), the licensee of station WEPX–TV, channel 51, Greenville, North Carolina, requesting the substitution of channel 26 for channel 51 at Greenville. After the Commission instituted a freeze on the acceptance of rulemaking petitions by full power television stations requesting channel substitutions in May 2011, it later announced that it would lift the freeze to accept petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement with Lower 700 MHz A Block licensees. ION has entered into a voluntary relocation agreement and further states that the proposed channel 26 facility will increase the net total population served by the station by over 100,000 persons, which will serve the public interest.
Comments must be filed on or before July 9, 2012, and reply comments on or before July 23, 2012.
Federal Communications Commission, Office of the Secretary, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: John R. Feore, Jr., Esq., Dow Lohnes PLLC, 1200 New Hampshire Avenue NW., Suite 800, Washington, DC 20036–6802.
Joyce L. Bernstein,
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 12–130, adopted May 23, 2012, and released May 25, 2012. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY–A257, 445 12th Street SW., Washington, DC, 20554. This document will also be available via ECFS (
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see §§ 1.415 and 1.420.
Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
2. Section 73.622(i), the Post-Transition Table of DTV Allotments under North Carolina is amended by
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
There is a NHTSA regulation that permits motor vehicle dealers and repair businesses to install retrofit on-off switches for air bags in vehicles owned by or used by persons whose request for a switch has been approved by the agency. This regulation is only available for motor vehicles manufactured before September 1, 2012. In this document, the agency proposes to extend the availability of this regulation for three additional years, so that it would apply to motor vehicles manufactured before September 1, 2015.
Comments must be received on or before July 9, 2012.
You may submit comments to the docket number identified in the heading of this document by any of the following methods:
•
•
•
•
You may call the Docket at 202–366–9324.
To prevent or mitigate the risk of injuries or fatalities in frontal crashes, Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection” (49 CFR 571.208), requires that vehicles be equipped with seat belts and frontal air bags.
In the 1990s, while air bags proved to be highly effective in reducing fatalities from frontal crashes, they were found to cause a small number of fatalities, especially to unrestrained, out-of-position children, in relatively low speed crashes. It was shown that the majority of these fatalities occurred because the occupants were very close to or made contact with the air bag when it started to deploy.
To address this problem, NHTSA developed a plan that included an array of immediate, interim and long-term measures. The immediate and interim measures focused on behavioral changes and relatively modest technological changes (e.g., consumer education on air bags and the importance of seat belts and putting children in the rear; amending FMVSS No. 208 to allow for a limited time a sled test option for expediting the depowering of air bags, etc.). The long-term measures focused on more significant technological changes, i.e., advanced air bag technologies.
As one of the interim measures, on November 21, 1997, NHTSA published in the
Under the procedures set forth in the 1997 rule, vehicle owners can request a retrofit air bag on-off switch by completing an agency request form (Appendix B of Part 595) and submitting the form to the agency. Owners must certify that they have read the information brochure, in Appendix A of Part 595, discussing air bag safety and risks. The brochure describes the steps that the vast majority of people can take to minimize the risk of serious injuries from air bags while preserving the benefits of air bags, without going to the expense of buying an on-off switch. The agency developed the brochure to enable owners to determine whether they are, or a user of their vehicle is, in one of the groups of people at risk of a serious air bag injury and to make a careful, informed decision about requesting an on-off switch.
If NHTSA approves a request, the agency will send the owner a letter authorizing the installation of one or more on-off switches in the owner's vehicle. The owner may give the authorization letter to a dealer or repair business, which may then install an on-off switch for the driver or passenger air bag or both, as approved by the agency. The retrofit air bag on-off switch must meet certain criteria, such as being equipped with a telltale light to alert vehicle occupants when an air bag has been turned off. The dealer or repair business must then fill in information about itself and its installation in a form in the letter and return the form to the agency.
In the November 1997 air bag on-off switch final rule, the agency indicated that it believed, based on safety considerations, that it should prohibit dealers and repair businesses from retrofitting advanced air bag vehicles with on-off switches, but that it would address this issue in the forthcoming rulemaking on advanced air bags (62 FR at 62432–33).
On May 12, 2000, NHTSA published in the
In the preamble to the May 2000 advanced air bag final rule, the agency decided to continue the exemption procedures for retrofit air bag on-off switches for vehicles manufactured through August 31, 2012. This provided time to allow manufacturers to perfect the suppression and low-risk deployment systems for air bags in all of their vehicles. It also provided a number of years to verify the reliability of advanced air bags based on real-world experience.
NHTSA also indicated in the advanced air bag final rule that there would be a need for deactivation of some sort (via on-off switch or permanently) for at-risk individuals who cannot be accommodated through sensors or other suppression technology (such as handicapped individuals or individuals with certain medical conditions). The agency stated at that time that it believed such needs could be best accommodated through the authorization system for deactivation of air bags in current use by NHTSA (65 FR at 30722).
Also, on February 27, 2001, NHTSA published a final rule in the
Since the introduction of advanced air bags, and even before that time, air bag-related fatalities have significantly declined. There have not been any confirmed air-bag-related child fatalities in model year 2004 or later vehicles. There have been two confirmed air-bag-related adult fatalities in model year 2004 or later vehicles.
However, as NHTSA recognized in the preamble to the advanced air bag final rule, there may still be a need for deactivation of air bags (via a switch or permanent deactivation) beyond September 1, 2012, for at-risk individuals who cannot be accommodated through the advanced air bag technology. Therefore, the agency has decided that it may be appropriate to propose extending the on-off switch provisions of Part 595 subpart B, for some risk groups despite the presence of advanced air bag technology.
To permit the agency time to thoroughly evaluate this issue, and potentially conduct rulemaking for an updated version of subpart B, we are proposing to extend the current subpart B provisions for three years. As discussed above, the regulation currently permits motor vehicle dealers and repair businesses, for motor vehicles manufactured before September 1, 2012, to install retrofit on-off switches for air bags in vehicles owned by or used by persons whose request for a switch has been approved by the agency. We are proposing to extend that date so the provision would apply to motor vehicles manufactured before September 1, 2015.
With the proposed three year extension, the agency plans to evaluate several aspects of the air bag on-off switch rule. Mainly, the agency will evaluate the criteria for granting the retrofit on-off switches (at-risk groups) in light of the existence of advanced air bag technology, and the retrofit switch brochures and forms that were included in part 595. The agency will also consider other topics that have arisen over the years such as our continued use of prosecutorial discretion for circumstances not covered by part 595 (e.g., the application of retrofit switches for emergency and law enforcement vehicles).
Given the imminence of the September 1, 2012 date, it would not be possible for us to complete the necessary evaluation and possible rulemaking before that time. We are therefore proposing the three-year extension, to maintain the current procedures during this time period. This will avoid a situation where retrofit on-off switches would not be available for vehicles manufactured during this time period, while the agency is considering further rulemaking that could permanently allow retrofit on-off air bag switches in specified circumstances. The agency expects to be able to fully analyze the issues surrounding such a rulemaking within those three additional years.
We have tentatively concluded that a three-year extension is in the interest of motor vehicle safety. This extension would prevent a potential gap in the regulation and avoid any complications and confusion that could arise if the subpart B exemption for retrofit on-off air bag switches were allowed to sunset and then, later on, the agency decided to maintain the exemption (in some form) permanently.
Given the short time period between now and the September 1, 2012 date, we are providing a 30-day comment period. We believe this shortened comment period is appropriate because we are proposing a relatively short-term extension of an existing exemption.
NHTSA has considered the impact of this rulemaking action under Executive Orders 12866 and 13563, and the Department of Transportation's regulatory policies and procedures (44 FR 11034; February 26, 1979). This action was not reviewed by the Office of Management and Budget under these executive orders. It is not considered to be significant under the Department's regulatory policies and procedures.
This document proposes to delay the sunset date of an existing exemption for retrofit on-off switches for frontal air bags. They are currently available, under specified circumstances, for vehicles manufactured before September 1, 2012. We are proposing to extend that date so that they will be available for vehicles manufactured before September 1, 2015.
The proposed rule would not require a motor vehicle manufacturer, dealer or repair business to take any action or bear any costs except in instances in which a dealer or repair business agrees to install an on-off switch for an air bag. For consumers, the purchasing and installation of on-off switches is permissive, not prescriptive.
When an eligible consumer obtains the agency's authorization for the installation of a retrofit on-off switch and a dealer or repair business agrees to install the switch, there will be costs associated with that action. The agency estimates that the installation of an on-off switch would typically require less than one hour of shop time, at the average national labor rate of approximately $80 per hour. NHTSA estimates that the cost of an air bag on-off switch for one seating position is $51 to $84 and the cost of an on-off switch for two seating positions is $68 to $101. The agency estimates that approximately 500 air bag on-off switch requests are received and authorized annually. However, we are uncertain about how many people actually pay to get them installed after we authorize it. Given the relatively low number of vehicle owners who will ultimately get the retrofit air bag on-off switches installed and the above estimated costs, the annual net economic impact of the actions taken under this proposed rule will not exceed $100 million per year.
Moreover, given the above, the fact that this has been a longstanding exemption available for consumers and since the agency is merely proposing to extend the availability of this exemption for an additional three years of vehicle production, the impacts are so minimal that a full regulatory evaluation is not needed.
The Regulatory Flexibility Act of 1980, as amended, requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations and small governmental jurisdictions. I hereby certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposal would merely extend the sunset provision in Part 595.5. No other changes are being proposed in this document. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this action will be insignificant.
NHTSA has examined today's proposed rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposed rule would 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.” Today's proposed rule would not impose any additional requirements. Instead, it would delay the sunset date of an existing exemption for retrofit on-off switches for frontal air bags, thereby lessening burdens on the exempted entities.
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: when a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance. However, this provision is not relevant to this proposed rule as this proposal does not involve the establishing, amending or revoking of a Federal motor vehicle safety standard.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted.
This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's proposed rule and finds that this proposed rule would increase flexibility for certain exempted entities. As such, NHTSA does not intend that this proposed rule would preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that would be established by today's proposed rule. Establishment of a higher standard by means of State tort law would not conflict with the exemption proposed here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action. Further, we are unaware of any State law or action that would prohibit the actions that this proposed exemption would permit.
The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). UMRA also requires an agency issuing a final rule subject to the Act to select the “least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule.” If made final, this proposed rule will not result in a Federal mandate that will likely result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995).
NHTSA has analyzed this proposed rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.
When promulgating a regulation, agencies are required under Executive Order 12988 to make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Several of the conditions placed by this exemption from the make inoperative prohibition are considered to be information collection requirements as defined by the OMB in 5 CFR part 1320. Specifically, this exemption from the make inoperative prohibition for motor vehicle dealers and repair businesses is conditioned upon vehicle owners filling out and submitting a request form to the agency, obtaining an authorization letter from the agency and then presenting the letter to a dealer or repair business. The exemption is also conditioned upon the dealer or repair business filling in information about itself and the installation of the retrofit on-off switch in the form provided for that purpose in the authorization letter and then returning the form to NHTSA. These information collection requirements in Part 595 have been approved by OMB (OMB Number: 2127–0588) through June 30, 2013, pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq). NHTSA will request an extension of this approval in a timely manner.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104–113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization (ISO) and the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to this NPRM.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
If you have any responses to these questions, please write to us with your views.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit two copies of your comments, including the attachments, to the Docket at the address given above under
Comments may also be submitted to the docket electronically by logging into
Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 595 as follows.
1. The authority citation for part 595 continues to read as follows:
49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of authority at 49 CFR 1.50.
2. Amend § 595.5 by revising paragraph (a) to read as follows:
(a) Beginning January 19, 1998, a dealer or motor vehicle repair business may modify a motor vehicle manufactured before September 1, 2015 by installing an on-off switch that allows an occupant of the vehicle to turn off an air bag in that vehicle, subject to the conditions in paragraphs (b)(1) through (5) of this section.
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 or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
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.
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 or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
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.
7 CFR part 1980–E, in conjunction with 7 CFR part 1942–A, and other regulations, is currently used only for making B&I Direct Loans. 7 CFR part 1951–E is used for servicing B&I Direct and Community Facility loans. All reporting and recordkeeping burden estimates for making and servicing B&I Guaranteed Loans have been moved to the B&I Guaranteed Loan Program regulations, 7 CFR parts 4279–A and B and 4287–B. Consequently, only a fraction of the total reporting and recordkeeping burden for making and servicing B&I Direct Loans is reflected in this document.
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 or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC;
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.
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
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.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on a proposed information collection. This collection is a revision of a currently approved collection for determining eligibility for free and reduced price meals and free milk in schools as stated in 7 CFR Part 245. These federal requirements affect eligibility under the National School Lunch Program, School Breakfast Program, and the Special Milk Program and are also applicable to the Child and Adult Care Food Program and the Summer Food Service Program when individual eligibility must be established. The current approval for the information collection burden associated with 7 CFR Part 245 expires on March 31, 2013. The revisions being requested are from rulemaking and are also from revisions made to a form associated with this information collection.
Written comments must be submitted by August 7, 2012.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to: Jon Garcia, Acting Branch Chief, Program Analysis and Monitoring Branch, Child Nutrition Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go to
All written comment(s) will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval, and will become a matter of public record.
Jon Garcia at (703) 305–2600.
In addition, this information collection is also requesting a revision in the burden hours due to rulemaking. The revision is based on the implementation of an interim final rule titled, “Direct Certification and Certification of Homeless, Migrant and Runaway Children for Free School Meals,” published April 25, 2011,
Refer to the following tables for estimated total annual reporting and recordkeeping burden per each type of respondent:
National Agricultural Statistics Service and Office of the Chief Economist, Department of Agriculture.
Notice and request for stakeholder input.
The National Agricultural Statistics Service (NASS) and the Office of the Chief Economist are currently accepting stakeholder input on the public release time and procedures of several major USDA statistical reports.
Comments on this notice must be received by July 9, 2012 to be assured of consideration.
Requests must address items listed in comments section below. Please submit comments via the Internet at
If you have any questions, send an email to
Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720–4333, Fax: 202–720–9013, or email:
USDA's National Agricultural Statistics Service and the Office of the Chief Economist are seeking comments on the release time of several of their major statistical reports. USDA statistical report release times are affected for the following reports: “World Agricultural Supply and Demand Estimates”, “Acreage”, “Cattle”, “Cattle on Feed”, “Crop Production”, “Grain Stocks”, “Prospective Plantings”, “Quarterly Hogs and Pigs”, and “Small Grain Summary”. The current release times of 8:30 a.m. and 3 p.m. ET will remain unchanged until official comments are considered. Under the Freedom of Information Act (FOIA) and the Office of Management and Budget (OMB) Statistical Policy Directives 3 and 4,
1. What is your preferred time of day (EDT) for report release?
2. Why is this time preferred?
3. Who are the data users impacted by this recommended time change?
4. How will this change impact these data users?
5. How are the data used when received at the current release time?
6. Other comments.
All responses to this notice will become a matter of public record and be summarized and considered by NASS and the Office of the Chief Economist in preparing any recommendation(s).
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Before the QSS economic indicator existed for the service sector, which accounts for about 53 percent of all economic activity, the only data available were from the Service Annual Survey (SAS) and the five-year Economic Censuses. The QSS was developed to address and provide more up-to-date estimates of services output. Based on this effort, the QSS is a major source for the development of quarterly Gross Domestic Product (GDP) and an indicator of short-term economic change.
The total revenue estimates produced from the QSS provide current trends of economic service industry activity in the United States from service providers with paid employees.
In addition to revenue, we also collect total expenses from tax-exempt firms in industries that have a large not-for-profit component. Expenses provide a better measure of the economic activity of these firms. Expense estimates produced by the QSS, in addition to inpatient days and discharges for the hospital industry, are used by the Centers for Medicare and Medicaid Services (CMS) to project and study hospital regulation, Medicare payment adequacy, and other related projects. For select industries in the Arts, entertainment, and recreation sector, the survey produces estimates of admissions revenue.
Beginning in March 2013, with the introduction of a new QSS sample, the QSS plans to provide estimates of revenue for the Accommodation subsector and estimates for interest income, loan fees, fees and commissions, financial planning and investment management, and net gains and losses from brokering for select finance and insurance industries.
We currently publish estimates based on the 2002 North American Industry Classification System (NAICS). With the introduction of the new QSS sample, we will publish estimates based on the 2007 NAICS. We will continue to publish no later than 75 days after the end of each calendar quarter.
Reliable measures of economic activity are essential to an objective assessment of the need for, and impact of, a wide range of public policy decisions. The QSS supports these measures by providing the latest estimates of service industry output on a quarterly basis.
Currently, the U.S. Census Bureau collects, tabulates, and publishes estimates to provide, with measurable reliability, statistics on domestic service total revenue, total expenses, and percentage of revenue by class of customer for select service providers. In addition, the QSS produces estimates for inpatient days and discharges for hospitals. In the future, QSS may produce breakdowns of revenue from financial firms. This depends on the quality and amount of data received as well as its reliability and accuracy.
The Bureau of Economic Analysis (BEA) is the primary Federal user of QSS results. The BEA utilizes the QSS estimates to make improvements to the national accounts for service industries. In the National Income and Product Accounts (NIPA), the QSS estimates allow more accurate estimates of both Personal Consumption Expenditures (PCE) and private fixed investment. For example, recently published revisions to the quarterly NIPA estimates resulted from the incorporation of new source data from the QSS. Revenue estimates from the QSS are also used to produce estimates of gross output by industry that allow BEA to produce a much earlier release of the gross domestic product by industry estimates.
Estimates produced from the QSS are used by the BEA as a component of quarterly GDP estimates. The estimates also provide the Federal Reserve Board
The CMS uses the QSS estimates to develop hospital spending estimates in the National Accounts. In addition, the QSS estimates improve their ability to analyze hospital spending trends. They also use the estimates in their healthcare indicator analysis publication; ten-year health spending forecast estimates; and studies in hospital regulation and Medicare policy, procedures, and trends.
The Medicare Payment Advisory Commission (MedPac) utilizes the QSS estimates to assess payment adequacy in the current Medicare program.
The FRB and the CEA use the QSS information to better assess current economic performance. In addition, other government agencies, businesses, and investors use the QSS estimates for market research, industry growth, business planning and forecasting.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202–395–7245) or email (
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (“Department”) and the International Trade Commission (“ITC”) that revocation of the antidumping duty order on foundry coke products from the People's Republic of China (“PRC”) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing a notice of continuation of the antidumping duty order.
Ricardo Martinez Rivera, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4532.
On December 1, 2011, the Department published the notice of initiation of the sunset review of the antidumping duty order on foundry coke products from the PRC, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“Act”).
The product covered under the antidumping duty order is coke larger than 100 mm (4 inches) in maximum diameter and at least 50 percent of which is retained on a 100–mm (4 inch) sieve, of a kind used in foundries. The foundry coke products subject to the antidumping duty order were classifiable under subheading 2704.00.00.10 (as of January 1, 2000) and are currently classifiable under subheading 2704.00.00.11 (as of July 1, 2000) of the
As a result of these determinations by the Department and the ITC that revocation of the antidumping duty order would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping order on foundry coke products from the PRC. U.S. Customs and Border Protection will continue to collect antidumping duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the order will be the date of publication in the
This five-year sunset review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“the Department”) is conducting the first administrative review of the antidumping duty order on oil country tubular goods (“OCTG”) from the People's Republic of China (“PRC”), covering the period May 19, 2010, through April 30, 2011.
We have preliminarily determined that Jiangsu Chengde Steel Tube Share Co., Ltd. (“Jiangsu Chengde”), Taizhou Chengde Steel Tube Co., Ltd. (“Taizhou Chengde”), and Yangzhou Chengde Steel Tube Co., Ltd. (“Yangzhou Chengde”) (collectively “the Chengde Group”) are a single entity for purposes of this administrative review
We invite interested parties to comment on these preliminary results. Parties who submit comments are requested to submit with each argument a summary of the argument. 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 or Eugene Degnan, 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, and (202) 482–0414, respectively.
On May 21, 2010, the Department published in the
On September 19, 2011 the Department issued its antidumping duty questionnaire to Jiangsu Chengde and Faray. On September 23, 2011, U.S. Steel withdrew its request for review for all parties named in the
On November 10, 2011, the Department requested that Import Administration's Office of Policy provide a list of surrogate countries for this review.
On January 19, 2012, the Department extended the time period for completion of the preliminary results of this review
The POR is May 19, 2010, through April 30, 2011.
The merchandise covered by the order consists of certain OCTG, which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
The merchandise covered by the order is currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The OCTG coupling stock covered by the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, and 7304.59.80.80.
The HTSUS subheadings are provided for convenience and customs purposes only, the written description of the scope of the order is dispositive.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of the initiation notice of the requested review. For all but one of the 53 companies for which the Department initiated an administrative review, U.S. Steel was the only party that requested the review. On September 23, 2011, U.S. Steel timely withdrew its review requests for 52 of the 53 companies for which the U.S. Steel was the only party that had requested an administrative review.
For those companies named in the
Petitioner's timely request for an administrative review included a request to conduct an administrative review of multiple companies that do not have separate rates. As described above, the U.S. Steel withdrew its review request covering these companies. Because these companies have not established their eligibility for a separate rate, these companies will continue to be considered part of the PRC-wide entity. Although the PRC-wide entity is not under review for these preliminary results, the possibility exists that the PRC-wide entity could be under review for the final results of this administrative review. Therefore, we are not rescinding this review with respect to these companies at this time but we intend to rescind this review with respect to the following companies in the final results if the PRC-wide entity is not reviewed: (1) Baoshan Iron & Steel Co., Inc.; (2) Baosteel Group; (3) Cangzhou Huaye Metal Products Co., Ltd.; (4) Cangzhou Qiancheng Steel Pipe Co.; (5) Freet Petroleum Equipment Group Co., Ltd.; (6) Guangzhou Juyi Steel Pipes Co., Ltd.; (7) Hebei Machinery Import & Export Co., Ltd.; (8) Hebei Zhongyuan Steel Pipe Manufacturing Co., Ltd.; (9) Hefei Zijin Steel Tube Manufacturing Co., Ltd.; (10) Hengyang Valin MPM Tube Co., Ltd.; (11) Hengyang Valin Steel Tube Co., Ltd.; (12) Huai'an Zhenda Steel Tube Manufacturing Co., Ltd.; (13) Huludao Steel Pipe Industrial Co., Ltd.; (14) Huludao City Steel Pipe Industrial Co., Ltd.; (15) Jiangsu Changbao Precision Tube Co., Ltd.; (16) Jiangsu Changbao Steel Tube Co., Ltd.; (17) Jiangsu Yulong Steel Pipe Co., Ltd.; (18) Jiangyin Chuangzin Oil Pipe; (19) Jiangyin City Seamless Steel Tube Factory; (20) Jinan Meide Casting Co., Ltd.; (21) Northern Tool Equipment Co., Ltd.; (22) Shandong Molong Group Co.; (23) Shengli Oil Field Freet Import & Export Co., Ltd.; (24) Thermal Recovery Equipment Manufacturer of Shengli Oil Field Freet Petroleum Equipment Co.; Ltd., (25) Tianjin Pipe Group Co., Ltd.; (26) Tianjin Shuangjie Pipe Manufacturing Co., Ltd.; (27) Wuxi Fastube Industry Co.; (28) Wuxi Huayou Special Steel Co., Ltd.; (29) Wuxi Seamless Special Pipe Co., Ltd.; (30)
U.S. Steel requested a review of Yangzhou Chengde and subsequently withdrew its review request with respect to this company. However, as described above and in the affiliation-collapsing memorandum,
No interested party contested the Department's treatment of the PRC as a non-market economy (“NME”) country in this administrative review, and the Department has treated the PRC as an NME country in all past antidumping duty investigations and administrative reviews.
When the Department conducts an administrative review of imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's factors of production (“FOP”), valued in a surrogate market economy (“ME”) country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more ME countries that are: (A) at a level of economic development comparable to that of the NME country; and (B) significant producers of comparable merchandise.
In examining which country to select as its primary surrogate country for this proceeding, the Department first determined that Colombia, Indonesia, Peru, the Philippines, South Africa, Thailand, and Ukraine are countries comparable to the PRC in terms of economic development.
TMK IPSCO, Wheatland Tube Company, and V&M Star submitted a letter stating that Indonesia is an appropriate surrogate country because: (1) Indonesia is at a level of economic development comparable to the PRC; (2) Indonesia is a significant producer of identical and comparable merchandise; and (3) the government of Indonesia has published publicly available import data covering the entire POR from which values for the major FOPs may be derived.
U.S. Steel submitted a letter stating that Indonesia is the appropriate surrogate country because: (1) Indonesia is at a level of economic development comparable to the PRC; (2) Indonesia is a significant producer of comparable merchandise; (3) Indonesia data meets the Department's criteria: the data allows the Department to calculate SVs using period-wide average prices that are publicly available, specific to the inputs in question, net of taxes and import duties, and contemporaneous with the POR.
Maverick submitted a letter incorporating by reference the December 19, 2011, comments made by TMK IPSCO, Wheatland Tube Company, and V&M Star stating that Indonesia is an appropriate surrogate country. Maverick states that in the
After evaluating interested parties' comments, the Department has determined that Indonesia is the appropriate surrogate country to use in this review in accordance with section 773(c)(4) of the Act, based on the following: (1) Indonesia is at a level of economic development comparable to that of the PRC;
Based on the evidence presented in Jiangsu Chengde's questionnaire responses, we preliminarily find that Jiangsu Chengde is affiliated with Yangzhou Chengde and Taizhou Chengde, both of which are capable of producing subject merchandise, pursuant to sections 771(33)(F) of the Act. In addition, based on the information presented in Jiangsu Chengde's questionnaire responses, we preliminarily find that Jiangsu Chengde, Taizhou Chengde, and Yangzhou Chengde, should be collapsed for the purposes of this administrative review. This finding is based on the determination that: (1) Jiangsu Chengde, Yangzhou Chengde, and Taizhou Chengde are affiliated; (2) Jiangsu Chengde is a producer of subject merchandise; (3) Yangzhou Chengde, and Taizhou Chengde are capable of producing merchandise under consideration and no retooling would be necessary in order to restructure manufacturing priorities; and (4) there is significant potential for manipulation of price or production among the parties.
A designation of a country as an NME remains in effect until it is revoked by the Department.
In the
Three companies other than the Chengde Group submitted separate rate certifications and two companies submitted separate rate applications. However, because U.S. Steel withdrew its request for review of these companies and no other company requested a review of them, their separate rate certifications/applications have not been considered for purposes of this administrative review.
Jiangsu Chengde reported that it is a wholly Chinese-owned company.
The Department considers the following
The evidence provided by the Chengde Group supports a preliminary finding of the absence of
Typically, the Department considers four factors in evaluating whether each
The evidence provided by the Chengde Group supports a preliminary finding of the absence of
Therefore, the evidence placed on the record of this review by the Chengde Group demonstrates an absence of
To determine whether sales of OCTG to the United States by the Chengde Group were made at less than NV, the Department compared EP to NV, as described in the “Export Price” and “Normal Value” sections of this notice. In these preliminary results, the Department applied the weighted-average dumping margin calculation method adopted in
In accordance with section 772(a) of the Act, we used EP for all sales reported by the Chengde Group. We calculated EP based on the packed prices to unaffiliated purchasers in, or for exportation to, the United States. We made deductions, as appropriate, for any movement expenses (
In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to find an appropriate SV to value FOPs, but when a producer sources an input from a ME and pays for it in ME currency, the Department may value the factor using the actual price paid for the input.
Section 773(c)(1) of the Act provides that the Department shall determine NV using a factors of production methodology if the merchandise is exported from an NME country and the Department finds that the available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. When determining NV in an NME context, the Department will base NV on FOPs because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. The Department's questionnaire requires that the Chengde Group provide information regarding the weighted-average FOPs across all of the company's plants and/or suppliers that produce the merchandise under consideration, not just the FOPs from a single plant or supplier. This methodology ensures that the Department's calculations are as accurate as possible.
We calculated NV based on FOPs in accordance with section 773(c)(3) and (4) of the Act and 19 CFR 351.408(c). The FOPs include but are not limited to: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. The Department used FOPs reported by the Chengde Group for direct materials, energy, labor, and packing materials.
The Chengde Group reported that it generates steel scrap during the production process of merchandise under consideration and requested an
In accordance with section 773(c) of the Act, the Department calculated NV based on FOPs reported by the Chengde Group for the POR. To calculate NV, the Department multiplied the reported per-unit factor consumption quantities by publicly available Indonesian SVs. In selecting the SVs, the Department considered the quality, specificity, and contemporaneity of the data. The Department adjusted input prices by including freight costs to make them delivered prices, as appropriate. Specifically, the Department added to Indonesian import surrogate values an Indonesian surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory. This adjustment is in accordance with the decision of the U.S. Court of Appeals for the Federal Circuit in
For the preliminary results, in accordance with the Department's practice, except where noted below, we used data from Indonesian import statistics in the Global Trade Atlas (“GTA”) and other publicly available Indonesian sources in order to calculate SVs for the Chengde Group's FOPs (
Furthermore, with regard to Indonesian import-based SVs, we have disregarded prices that we have reason to believe or suspect may be subsidized, such as those from South Korea, India, and Thailand. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized.
In these preliminary results, the Department calculated the cost of labor using data on industry-specific labor cost from the primary surrogate country (
The ILO data from Chapter 6A of the Yearbook, which was used to value labor, reflects all costs related to labor, including wages, benefits, housing, training,
For these preliminary results the Department did not separately value
We valued truck freight expenses using data from an Indonesian freight forwarder, PT. Mantap Abiah Abadi, for the month of September 2011.
We valued brokerage and handling expenses using the World Bank publication “Doing Business 2011: Indonesia.”
We valued marine insurance using a price quote for July 2010, which we obtained from RJG Consultants. RJG Consultants is a market-economy provider of marine insurance. We did not inflate this rate since it is contemporaneous with the POR.
19 CFR 351.408(c)(4) directs the Department to value overhead, general, and administrative expenses (“SG&A”) and profit using non-proprietary information gathered from producers of identical or comparable merchandise in the surrogate country. In this administrative review, the Department valued overhead, SG&A using the financial statements of PT Citra Tubindo a manufacturer and service provider for oilfield tubular goods.
Where necessary, the Department made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect as certified by the Federal Reserve Bank on the date of the U.S. sale.
The preliminary weighted-average dumping margin is as follows:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the Chengde Group, which has a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
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.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
National Institute of Standards and Technology, Commerce.
Notice.
This notice contains the list of National Fire Protection Association (NFPA) documents opening for Public Input, and it also contains information on the NFPA Revision Process. The National Institute of Standards and Technology (NIST) is publishing this notice on behalf of the National Fire Protection Association (NFPA) to announce the NFPA's proposal to revise some of its fire safety codes and standards and requests Public Input to amend existing or begin the process of developing new NFPA fire safety codes and standards. The purpose of this request is to increase public participation in the system used by NFPA to develop its codes and standards.
Interested persons may submit Public Input by 5:00 p.m. EST/EDST on or before the date listed with the code or standard.
Amy Beasley Cronin, Secretary, Standards Council, NFPA, 1 Batterymarch Park, Quincy, Massachusetts 02169–7471.
Amy Beasley Cronin, NFPA, Secretary, Standards Council, at above address, (617) 770–3000. David F. Alderman, NIST, at 301–975–4019.
The National Fire Protection Association (NFPA) proposes to revise some of its fire safety codes and standards and requests Public Input to amend existing or begin the process of developing new NFPA fire safety codes and standards. The purpose of this request is to increase public participation in the system used by NFPA to develop its codes and standards. The publication of this notice of request for Public Input by the National Institute of Standards and Technology (NIST) on behalf of NFPA is being undertaken as a public service; NIST does not necessarily endorse, approve, or recommend any of the standards referenced in the notice.
The NFPA process provides ample opportunity for public participation in the development of its codes and standards. All NFPA codes and standards are revised and updated every three to five years in Revision Cycles that begin twice each year and take approximately two years to complete. Each Revision Cycle proceeds according to a published schedule that includes final dates for all major events in the process. The Code Revision Process contains four basic steps that are followed for developing new documents as well as revising existing documents. Step 1: Public Input Stage, which results in the First Draft Report (formerly ROP); Step 2: Comment Stage, which results in the Second Draft Report (formerly ROC); Step 3: The Association Technical Meeting at the NFPA Conference & Expo; and Step 4: Standards Council consideration and issuance of documents.
NFPA rules state that, anyone wishing to make Amending Motions on the Public Comments, Second Revisions, or Committee Comments must signal his or her intention by submitting a Notice of Intent to Make a Motion by 5:00 p.m. EST/EDST of the Deadline stated in the Second Draft Report. Certified motions will then be posted on the NFPA Web site. Documents that receive notice of proper Amending Motions (Certified Amending Motions) will be presented for action at the Association Technical Meeting at the NFPA Conference & Expo. Documents that receive no motions will be forwarded directly to the Standards Council for action on issuance.
For more information on these rules and for up-to-date information on schedules and deadlines for processing NFPA Codes and Standards, check the NFPA Web site at
The National Fire Protection Association (NFPA) develops building, fire, and electrical safety codes and standards. Federal agencies frequently use these codes and standards as the basis for developing Federal regulations concerning fire safety. Often, the Office of the Federal Register approves the incorporation by reference of these standards under 5 U.S.C. 552(a) and 1 CFR part 51.
When a Technical Committee begins the development of a new or revised NFPA code or standard, it enters one of two Revision Cycles available each year. The Revision Cycle begins with the Call for Public Input, that is, a public notice asking for any interested persons to submit specific Input for developing or revising a code or standards. The Call for Public Input is published in a variety of publications.
Following the Call for Public Input period, the Technical Committee holds a meeting to consider all the submitted Public Input and make Revisions accordingly. A document known as the First Draft Report (formerly ROP), is prepared containing all the Public Input, the Technical Committee's response to each Input, as well as all Committee-generated First Revisions. The First Draft is then submitted for the approval of the Technical Committee by a formal written ballot. Any Revisions that do not receive approval by a two-thirds vote calculated in accordance with NFPA rules will not appear in the First Draft. If the necessary approval is received, the Revisions are published in the First Draft Report that is posted on the NFPA Web site at
Once the First Draft Report becomes available, there is a 10 week comment period during which anyone may submit a Comment on the proposed changes in the First Draft Report. The
As before, a two-thirds approval vote by written ballot of the eligible members of the Committee is required for approval of the Second Revisions. All of this information is compiled into a second report, called the Second Draft Report (formerly ROC), which, like the First Draft Report, is published, and is made available for public review for a five-week period.
The process of public input and review does not end with the publication of the First Draft Report and Second Draft Report. Following the completion of the Public Input and Comment periods, there is further opportunity for debate and discussion through the Association Technical Meeting that takes place at the NFPA Conference & Expo.
The Association Technical Meeting provides an opportunity for the Technical Committee Report (i.e., the First Draft Report and Second Draft Report) on each proposed new or revised code or standard to be presented to the NFPA membership for the debate and consideration of motions to amend the Report. Before making an allowable motion at an Association Technical Meeting, the intended maker of the motion must file, in advance of the session, and within the published deadline, a Notice of Intent to Make a Motion (NITMAM). A Motions Committee appointed by the Standards Council then reviews all notices and certifies all amending motions that are proper. Only these Certified Amending Motions, together with certain allowable Follow-Up Motions (that is, motions that have become necessary as a result of previous successful amending motions) will be allowed at the Association Technical Meeting.
For more information on dates/locations of NFPA Technical Committee meetings and NFPA Conference & Expo, check the NFPA Web site at:
The specific rules for the types of motions that can be made and who can make them are set forth in NFPA's Regulations Governing the Development of NFPA Standards which should always be consulted by those wishing to bring an issue before the membership at an Association Technical Meeting.
Interested persons may submit Public Input supported by data, views, and substantiation. Public Input should be submitted online for each specific document (i.e.,
Advanced Manufacturing National Program Office, National Institute of Standards and Technology, Department of Commerce.
Notice.
The Advanced Manufacturing National Program Office (AMNPO), housed at the National Institute of Standards and Technology (NIST), announces the second workshop in a series of public workshops entitled “Designing for Impact: Workshop on Building the National Network for Manufacturing Innovation.” This workshop series provides a forum for the AMPNO to introduce the National Network for Manufacturing Innovation (NNMI) and its regional components, Institutes for Manufacturing Innovation (IMIs) and for public discussion of this new initiative that was announced by President Obama on March 9, 2012
The second public workshop in this series will be held on Monday, July 9, 2012 from 8:00 a.m. until 4:30 p.m. Eastern time. Event check-in will open at approximately 7:00 a.m. Eastern time. On-line sign-up for the workshop will close at 5:00 p.m. Eastern time on Tuesday, July 2, 2012.
The second public workshop in this series will be held at Corporate College East, 4400 Richmond Road, Warrensville Hts., OH 44128. Corporate College East is located on the campus of Cuyahoga Community College. Members of the public wishing to attend the public workshop must sign-up in advance and must do so online at:
Michael Schen, (301) 975–6741,
15 U.S.C. 272(b)(1).
The proposed NNMI initiative focuses on strengthening and ensuring the long-term competitiveness and job-creating power of U.S. manufacturing. The constituent IMIs will bring together industry, universities and community colleges, federal agencies, and U.S. states to accelerate innovation by investing in industrially-relevant manufacturing technologies with broad applications to bridge the gap between basic research and product development, provide shared assets to help companies—particularly small manufacturers—access cutting-edge capabilities and equipment, and create an unparalleled environment to educate and train students and workers in advanced manufacturing skills. The President's proposed FY 2013 budget includes $1 billion for this proposed initiative.
Each IMI will serve as a regional hub of manufacturing excellence, providing the innovation infrastructure to support regional manufacturing and ensuring that our manufacturing sector is a key pillar in an economy that is built to last. Each IMI also will have a well-defined technology focus to address industrially-relevant manufacturing challenges on a large scale and to provide the capabilities and facilities required to reduce the cost and risk of commercializing new technologies.
In his March 9, 2012 announcement, President Obama proposed building a national network consisting of up to 15 IMIs.
On December 15, 2011, Commerce Secretary John Bryson announced the Advanced Manufacturing National Program Office (AMNPO) that is hosted by the National Institute of Standards and Technology (NIST)
The AMNPO coordinated and held the first “Designing for Impact: Workshop on Building the National Network for Manufacturing Innovation” on April 25, 2012, at Rensselaer Polytechnic Institute in Troy, New York. On May 4, 2012 the AMNPO issued a Request for Information (RFI), seeking public comment on specific questions related to the structure and operations of the NNMI and IMIs. The RFI was published in the
Individuals planning to attend the second public workshop must sign-up in advance. See sign-up information in the
Announcements of additional workshops may be found at:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Research Steering Committee (Committee) in June, 2012, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will be held on Monday, June 25, 2012, at 9 a.m.
The meeting will be held at the Courtyard by Marriott, 225 McClellan Highway, East Boston, MA 02128, telephone: (617) 569–5250; fax: (617) 569–5159.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Research Steering Committee will meet to give an update on NEFSC Northeast Cooperative Research Program as well as an update on NERO Cooperative research activities. The Committee will also review cooperative research projects final reports: (1) REDNET—A Network to Redevelop a Sustainable Redfish (Sebastes fasciatus) Trawl Fishery in the Gulf of Maine; Kohl Kanwit, Mike Pol, Pingguo He; (2) Optimizing the Georges Bank Scallop Fishery by Maximizing Meat Yield and Minimizing Bycatch; 2011 Sea Scallop Research Set-Aside, Ronald Smolowitz, Kathryn Goetting, Farrell Davis, Dan Ward, Coonamessett Farm Foundation, Inc; (3) A Study on the Use of Tie-Downs and Their Impact on Atlantic Sturgeon, Marine Mammal Bycatch and Targeted Catch in the New Jersey Monkfish Fishery. Fox, D. A., L. M. Brown, K. W. Wark, and J. L. Armstrong. 2011, NOAA Bycatch Reduction Engineering Program; (4) Pilot Project to Assess Need and Initialize a Methodology to Groundtruth Existing Mulit-beam and Side-scan Sonar Seafloor Charts—NEC Report, Salvatore Genovese, Ph.D. Northeast University; (5) Ecological Role of Adult and Juvenile Anadromous Forage fish in Downeast Maine Estuaries: Sea-run Alewife and Groundfish Prey—NEC Report, Karen Wilson, University of Southern Maine; and (6) A Collaborative Effort to Examine New Strategies for Managing Closed Bottom Habitats for Sea Scallops—NEC Report, Dr. Brian F. Beal, University of Maine at Machias, Terry Stockwell and Chris Bartlett.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of change to public meeting agenda.
The Western Pacific Fishery Management Council (Council) announces a change in the agenda for the 154th Council Meeting.
The 154th Council meeting will be held between 9 a.m. and 5:30 p.m. on June 26, 2012, between 8:30 a.m. and 5:30 p.m. on June 27, 2012, and between 8:30 a.m. and 4 p.m. on June 28, 2012. For specific times and agenda, see
The Council meeting will be held at the Laniakea YWCA-Fuller Hall, 1040 Richards Street, Honolulu, HI 96813; telephone: (808) 538–7061.
Kitty M. Simonds, Executive Director; telephone: (808) 522–8220.
The original notice published in the
The 154th Council meeting will be held between 9 a.m. and 5:30 p.m. on June 26, 2012, between 8:30 a.m. and 5:30 p.m. on June 27, 2012, and between 8:30 a.m. and 4 p.m. on June 28, 2012. Pelagics and International Fisheries is scheduled on the agenda for the afternoon session of the Council between 1:30 p.m. and 5:30 p.m. on June 27, 2012.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522–8220 (voice) or (808) 522–8226 (fax), at least 5 prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public scoping meeting.
NMFS has scheduled an additional scoping meeting for Amendment 7 to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan, which will focus on management issues related to Atlantic bluefin tuna. A Notice of Intent published on April 23, 2012, which notified the public that NMFS intended to hold public scoping meetings and that it anticipated preparing a draft environmental impact statement. That
The Portland, ME, scoping meeting will be held on June 18, 2012.
The Amendment 7 public scoping meeting will be held in Portland, ME, at the Holiday Inn by the Bay. See supplementary information below for further details.
Tom Warren or Brad McHale, 978–281–9260.
NMFS published a Notice of Intent on April 23, 2012 (77 FR 24161), which notified the public of its intent to hold public scoping meetings and that it anticipated preparing a draft environmental impact statement, and requested comments. The intent of the public comment and scoping meetings is to determine the scope and significance of issues to be analyzed in a potential proposed amendment to the 2006 Consolidated Highly Migratory Species Fishery Management Plan and any associated environmental impact statement on management measures for Atlantic bluefin tuna. The public scoping process will help NMFS determine if existing measures are the best means of achieving certain management objectives for bluefin tuna and providing flexibility for future management, consistent with relevant Federal laws. NMFS also announced the availability of a scoping document describing measures for potential inclusion in a proposed Amendment, and solicited public comment on the objectives and management options. Written comments on the Notice of Intent and the scoping document must be received on or before July 15, 2012.
The April 23, 2012 Notice of Intent included the specific location, date, and time of four scoping meetings, and the location and approximate time of three NMFS consultations with regional fishery management councils (Councils), during their June meetings (Mid-Atlantic Fishery Management Council; New England Fishery Management Council, South Atlantic Fishery Management Council), and more detailed background information. That information is not repeated here.
Since the publication of the Notice of Intent, NMFS decided to schedule an additional scoping meeting that would be held in conjunction with the New England Fishery Management Council meeting in Portland, Maine, to provide additional opportunity for public input. The relevant information is provided below:
In addition to this
The meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tom Warren (see
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to the Procurement List.
This action adds a service to the Procurement List that will be provided by the nonprofit agency employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202–3259.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 4/132012 (77 FR 22289–22290), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.
2. The action will result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the service proposed for addition to the Procurement List.
Accordingly, the following service is added to the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to the Procurement List.
The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202–3259.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the services to the Government.
2. If approved, the action will result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following services are proposed for addition to the Procurement List for provision by the nonprofit agencies listed:
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Consumer Product Safety Commission (Commission) requests comments on a proposed extension of approval, for a period of 3 years from the date of approval by the Office of Management and Budget (OMB), of information collection requirements for manufacturers and importers of carpets and rugs. The collection of information is in regulations implementing the Standard for the Surface Flammability of Carpets and Rugs (16 CFR part 1630) and the Standard for the Surface Flammability of Small Carpets and Rugs (16 CFR part 1631). These regulations establish requirements for testing and recordkeeping for manufacturers and importers who furnish guaranties or certificates for products subject to the carpet flammability standards. The Commission will consider all comments received in response to this notice before requesting an extension of approval of this collection of information from the OMB.
The Office of the Secretary must receive comments not later than August 7, 2012.
You may submit comments, identified by Docket No. CPSC–2012–0030, by any of the following methods:
Submit electronic comments in the following way:
Submit written submissions in the following way:
Instructions: All submissions received must include the agency name and docket number for this notice. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to
For further information contact: Mary James, Office of Information and Technology Services, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504–7213, or by email to:
The Standard for the Surface Flammability of Carpets and Rugs, 16 CFR part 1630, and the Standard for the Surface Flammability of Small Carpets and Rugs, 16 CFR part 1631, were issued under section 4 of the Flammable Fabrics Act (FFA) (15 U.S.C. 1193) in 1970. The standards cover any type of finished product made in whole or in part of fabric or related material and intended for use as a floor covering in homes, offices, or other places of assembly or accommodation. The standards establish an acceptable level of flammability performance. Items must meet the requirements of the standards prior to distribution in commerce, and firms must issue a “General Certification of Conformity” (GCC) or “Children's Product Certificate” (CPC), certifying that the products meet all applicable product safety regulations. The GCC and CPC requirements are additional requirements imposed by the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. 2063(g). The CPSIA also imposes a third party testing requirement for all consumer products, including carpets and rugs, subject to a consumer product safety rule or similar rule, ban, standard, or regulation under any other Act enforced by the Commission, that are primarily intended for children 12 years of age or younger. Every manufacturer (including an importer) or a private labeler of a children's carpet or rug must have its product tested for compliance to parts 1630 and 1631 and other applicable product safety rules by an accredited, CPSC-accepted third party laboratory. In addition to the standards, certain enforcement regulations (16 CFR 1630.31 and 1631.32) have been issued under section 5 of the FFA (15 U.S.C. 1194) to address reasonable and representative tests and the recordkeeping requirement. These rules specify the frequency of testing necessary to support the issuance of a guaranty of compliance under the FFA and the types of records that must be maintained to document this activity. Beginning in 2013, firms must also employ reasonable and representative testing programs in accordance with the CPSIA.
The OMB approved the collection of information in the regulations under control number 3041–0017. OMB's most recent extension of approval expires on August 31, 2012. The Commission now proposes to request an extension of approval for the collection of information in the regulations.
The Commission estimates that 120 firms are subject to the information collection requirements. These firms
The annualized costs to respondents for the hour burden for collection of information is estimated to be as high as $1,837,200, using a mean hourly employer cost-per-hour-worked of $61.24 (Bureau of Labor Statistics (BLS): Total compensation rates for management, professional, and related occupations in private goods-producing industries, December 2011) (30,000 hours × $61.24).
The estimated annual cost to the federal government of the information and collection requirements is approximately $42,900. This sum includes three staff months expended for examination of the information in records required to be maintained by the enforcement rules. This estimate uses an average wage rate of $57.13 per hour (the equivalent of a GS–14 Step 5 employee), with an additional 30.2 percent added for benefits (BLS, Percentage of total compensation comprised by benefits for all civilian management, professional, and related employees, December 2011) or $82.56 per hour × 520 hours.
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
Consumer Product Safety Commission.
Notice of meeting.
The Consumer Product Safety Commission (“CPSC” or “Commission”) is announcing a teleconference and the seventh meeting of the Chronic Hazard Advisory Panel (“CHAP”) on phthalates and phthalate substitutes. The Commission appointed this CHAP on April 14, 2010, to study the effects on children's health of all phthalates and phthalate alternatives, as used in children's toys and child care articles, pursuant to section 108 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) (Pub. L. 110–314). The CHAP will discuss its progress toward completing its analysis of potential risks from phthalates and phthalate substitutes.
The teleconference will take place from 11 a.m. to 1 p.m. EDT (15 to 17 GMT) on Friday, June 29, 2012. Interested members of the public may listen to the CHAP's discussion. Members of the public will not have the opportunity to ask questions, comment, or otherwise participate in the teleconference. Interested parties should contact the CPSC project manager, Michael Babich, by email (
Michael Babich, Directorate for Health Sciences, Consumer Product Safety Commission, Bethesda, MD 20814; telephone (301) 504–7253; email:
Section 108 of the CPSIA permanently prohibits the sale of any “children's toy or child care article” containing more than 0.1 percent of each of three specified phthalates: di- (2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), and benzyl butyl phthalate (BBP). Section 108 of the CPSIA also prohibits, on an interim basis, the sale of any “children's toy that can be placed in a child's mouth” or “child care article” containing more than 0.1 percent of each of three additional phthalates: diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-
Moreover, section 108 of the CPSIA requires the Commission to convene a CHAP “to study the effects on children's health of all phthalates and phthalate alternatives as used in children's toys and child care articles.” The CPSIA requires the CHAP to complete an examination of the full range of phthalates that are used in products for children and:
• Examine all of the potential health effects (including endocrine-disrupting effects) of the full range of phthalates;
• Consider the potential health effects of each of these phthalates, both in isolation, and in combination with other phthalates;
• Examine the likely levels of children's, pregnant women's, and others' exposure to phthalates, based upon a reasonable estimation of normal and foreseeable use and abuse of such products;
• Consider the cumulative effect of total exposure to phthalates, both from children's products and from other sources, such as personal care products;
• Review all relevant data, including the most recent, best-available, peer-reviewed, scientific studies of these phthalates and phthalate alternatives that employ objective data-collection practices or employ other objective methods;
• Consider the health effects of phthalates not only from ingestion, but also as a result of dermal, hand-to-mouth, or other exposure;
• Consider the level at which there is a reasonable certainty of no harm to children, pregnant women, or other susceptible individuals and their offspring, considering the best available science, and using sufficient safety factors to account for uncertainties
• Consider possible similar health effects of phthalate alternatives used in children's toys and child care articles.
The CHAP must review prior work on phthalates by the Commission, but it is not to be considered determinative because the CHAP's examination must be conducted
The CHAP must make recommendations to the Commission regarding any phthalates (or combinations of phthalates), in addition to those identified in section 108 of the CPSIA, or phthalate alternatives that the panel determines should be prohibited from use in children's toys or child care articles, or otherwise restricted. The CHAP members were selected by the Commission from scientists nominated by the National Academy of Sciences.
The CHAP met previously in April, July, and December 2010, March, July, and November 2011, and in February 2012, at the CPSC's offices in Bethesda, MD, and by teleconference in November 2010, September 2011, December 2011, and February and April 2012. The CHAP heard testimony from interested parties at the July 2010, and November 2011, meetings. There will not be any opportunity for public comment during the June 2012 teleconference.
Under Secretary of Defense Personnel and Readiness, DoD.
Notice of meeting; cancellation.
On May 11, 2012 (77 FR 27739), Department of Defense announced a meeting of the National Security Education Board. This meeting was to be held on June 20, 2012, from 8:30 a.m. to 2 p.m. at Defense Language and National Security Education Office, 1101 Wilson Boulevard, Suite 1210, Arlington, VA 22209.
Pursuant to Public Law 92–463, notice is hereby given of the cancellation of the June 20, 2012 National Security Education Board meeting. The purpose of the meeting was to review and make recommendations to the Secretary of Defense concerning requirements established by the David L. Boren National Security Education Act, Title VII of Public Law 102–183, as amended. The meeting will be postponed until fall 2012.
Ms. Alison Patz, Program Analyst, Defense Language and National Security Education Office (DLNSEO), 1101 Wilson Boulevard, Suite 1210, Arlington, Virginia 22209–2248; (703) 696–1991. Electronic mail address:
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, the U.S. Army Corps of Engineers has prepared a Draft Feasibility Study/Environmental Impact Statement (FR/EIS) for the Chatfield Reservoir Storage Reallocation, Littleton, Colorado and by this notice is announcing the opening of the comment period.
The comment period will be open from June 8, 2012 to August 7, 2012. Public meetings will take place in June, 2012. The specific schedule is provided under
Written comments should be sent to: Department of the Army; Corps of Engineers, Omaha District; CENWO–PM–AA; ATTN: Chatfield Reservoir Storage Reallocation FR/EIS; 1616 Capitol Avenue; Omaha, NE 68102–4901. Comments can also be emailed to:
For further information and/or questions about the Chatfield Reservoir Storage Reallocation FR/EIS, please contact Ms. Gwyn Jarrett, Project Manager, by telephone: (402) 995–2717, by mail: 1616 Capitol Avenue, Omaha, NE 68102–4901, or by email:
By authority provided under Section 808 of the Water Resources Development Act of 1986 (Pub. L. 99–622), as amended by Section 3042 of the Water Resources Development Act of 2007 (Pub. L. 110–114), the Secretary of the Army, upon request of and in coordination with, the Colorado Department of Natural Resources (CDNR), and upon the Chief of Engineers' finding of feasibility and economic justification, may reassign a portion of the storage space in the Chatfield Lake project to joint flood control-conservation purposes, including storage for municipal and industrial water supply, agriculture, environmental restoration, and recreation and fishery habitat protection and enhancement. The reallocation was conditioned upon the appropriate non-Federal interests agreeing to repay the
It is the purpose of this study to identify alternatives, compare those alternatives, and select the best alternative for meeting the needs based on solid planning principles. The FR/EIS allows the public, cooperating agencies, and Corps decision makers to compare the impacts and costs among a range of alternatives.
All public involvement meetings will use an open house format and will include the opportunity to make public comment. Informational materials about the Chatfield Reservoir Storage Reallocation FR/EIS will be located throughout the room for participant perusal throughout the evening. Corps representatives will be available to meet one-on-one with meeting participants. In addition to the public comments being recorded, written comments will be collected on comment cards, and the opportunity to have formal verbal comments transcribed will be available. All forms of comment will be weighted equally. Input from the public involvement meetings, along with comments received by other means (regular mail or email), will be used to refine the document before a Final FR/EIS is released.
The Corps has scheduled public involvement meetings from 5:30 p.m. to 8:30 p.m. at the following locations:
If you require assistance under the Americans with Disabilities Act please send your name and phone via email to
For more information about the Chatfield Reservoir Storage Reallocation FR/EIS, please visit
Department of the Navy, DoD.
Notice.
The Department of the Navy herby gives notice of its intent to grant to Lumedyne Technologies, Inc., a revocable, nonassignable, partially exclusive license in the United States to practice the Government-Owned inventions described in Navy Case No. 101330: Tuning Fork Gyroscope Time Domain Inertial Sensor.//Navy Case No. 101472: Auto-Ranging for Time Domain Extraction of Perturbations to Sinusoidal Oscillation.//Navy Case No. 101473: Closed-Loop Control Algorithm for a Gyroscope with Arbitrary Force and Angular Rate Inputs.//U.S. Patent Application No. 13/353205: Time Domain Tunneling Switched Multi-axial Gyroscope with Independent Acceleration Measurement.//U.S. Patent Application No. 13/425631: In-Plane, Six Degree of Freedom Inertial Device with Integrated Clock.//U.S. Patent Application No. 11/272588: Auto-Ranging for Time Domain Inertial Sensor.//U.S. Patent Application No. 13/288841: Oscillation Apparatus with Atomic-Layer Proximity Switch.//U.S. Patent No. 8174083: Dual-suspension system for MEMS-based devices.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than June 25, 2012.
Written objections are to be filed with the Office of Research and Technology Applications Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St, Bldg A33 Room 2531, San Diego, CA 92152–5001.
Brian Suh, Office of Research and Technology Applications, Space and Naval Warfare Systems Center Pacific, Code 72120, 53560 Hull St, Bldg A33 Room 2531, San Diego, CA 92152–5001, telephone 619–553–5118, E–Mail:
35 U.S.C. 207, 37 CFR part 404.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. BOST1 Hydroelectric LLC filed a request to use the Traditional Licensing Process on March 21, 2012. BOST1 Hydroelectric LLC provided public notice of the request on April 4, 2012. In a letter dated May 17, 2012, the Director of the Division of Hydropower Licensing approved the request to use the Traditional Licensing Process.
k.
l. BOST1 Hydroelectric LLC filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
m. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
n. Register online at
Take notice that on May 21, 2012, Petal Gas Storage, L.L.C. (Petal) and Hattiesburg Industrial Gas Sales, L.L.C. (Hattiesburg), 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, filed in Docket No. CP12–464–000 an application pursuant to sections 7(c) and 7(b) of the Natural Gas Act (NGA), for authorization for Petal to acquire the non-jurisdictional natural gas storage facilities owned and operated by Hattiesburg in Forrest County, Mississippi, for continued authority to charge market-based rates for services related to the combined facilities, and for Hattiesburg to abandon its facilities and services related to its certificate of limited jurisdiction issued under section 284.224 of the Commission's regulations, all as more fully set forth in the application which is on file with the Commission and open for public inspection.
Any questions regarding the applications should be directed to J. Kyle Stephens, Vice President, Regulatory Affairs, Petal Gas Storage, L.L.C., 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, or call at 713–479–8033, by facsimile at 713–479–1846, or by email at
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Comment Date: June 21, 2012.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Free Flow Power Corporation on behalf of FFP Project 70, LLC filed a request to use the Traditional Licensing Process on April 3, 2012. Free Flow Power Corporation provided public notice of the request on March 13 and 14, 2012. In a letter dated June 1, 2012, the Director of the Division of Hydropower Licensing approved the request to use the Traditional Licensing Process.
k.
l. With this notice, we are designating FFP Project 70, LLC and Free Flow Power Corporation as the Commission's non-federal representatives for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act, section 305 of the Magnuson-Stevens Fishery Conservation and Management Act, and section 106 of the National Historic Preservation Act.
m. Free Flow Power Corporation on behalf of FFP Project 70, LLC filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (http://www.ferc.gov), using the “eLibrary” link. Enter the docket number (P–14202), excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at FERCONlineSupport@ferc.gov or toll free at 1–866–208–3676, or for TTY, (202) 502–8659. A copy is also available for inspection and reproduction at the address in paragraph h.
o. Register online at
On March 22, 2012, the American River Power III, LLC filed an application for a preliminary permit under section 4(f) of the Federal Power Act proposing to study the feasibility of the proposed Dillon Lake Hydroelectric Water Power Project No. 14375, to be located at the existing Dillon Lake Dam on the Licking River, near the City of Zanesville in Muskingum County, Ohio. The Dillon Lake Dam is owned by the United States Government and operated by the United States Army Corps of Engineers.
The proposed project would consist of: (1) One new 30-foot-long by 30-foot-wide by 30-foot-high powerhouse, containing one 1.59-megawatt turbine; (2) one new 50-foot-long by 8-foot-diameter steel penstock; (3) a new 32-foot by 28-foot substation; (4) a new 30-foot-wide tailrace; (5) a new 300-foot-long, 14.7-kilovolt transmission line; and (6) appurtenant facilities. The project would have an estimated annual generation of 9.7 gigawatt-hours.
Deadline for filing comments, motions to intervene, and competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications
More information about this project, including a copy of the application can be viewed or printed on the “eLibrary” link of Commission's Web site at
On April 30, 2012, American River Power IX, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Peoria Dam, Illinois—Hydroelectric Water Power Project (Peoria Dam Project or project) to be located at the U.S. Army Corps of Engineers' (Corps) Peoria Lock and Dam on the Illinois River, near Bartonsville, Peoria County, Illinois. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A concrete intake located on the Peoria County side of the Illinois River upstream of an existing retaining wall and facing 45 degrees to the existing dam; (2) a 120-foot-long, 50-foot-wide, 55-foot-high powerhouse containing two horizontal Kaplan pit turbines each with a rated capacity of 3.75 megawatts, and each coupled to a speed increaser and then coupled to a high speed generator; (3) a concrete tailrace releasing water into the river downstream of the dam; (4) a switchyard with a step-up transformer increasing the 4.16 kilovolts (kV) produced by the generators to 36.7 kV; (5) a 1,500-foot-long, 36.7-kV transmission line conveying the power from the switchyard to a point of interconnection with the local utility; and (6) appurtenant facilities. The project would occupy lands owned and administered by the Corps. The estimated annual generation of the Peoria Dam Project would be 32.5 gigawatt-hours.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
On May 27, 2010, the Public Utility District No. 1 of Douglas County, licensee for the Wells Hydroelectric Project, filed an Application for a New License pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. The Wells Hydroelectric Project is located on the Columbia River in Douglas, Okanogan, and Chelan Counties, Washington.
The license for Project No. 2149 was issued for a period ending May 31, 2012. Section 15(a)(1) of the FPA, 16 USC 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2149 is issued to the Public Utility District No. 1 of Douglas County for a period effective June 1, 2012 through May 31, 2013, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before May 31, 2013, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that the Public Utility District No. 1 of Douglas County is authorized to continue operation of the Wells Hydroelectric Project, until such time as the Commission acts on its application for a subsequent license.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission's staff may attend the following meetings related to the transmission planning activities of the Southwest Power Pool, Inc. (SPP):
The above-referenced meetings will be held at: AEP Offices, 1201 Elm Street, 8th Floor, Dallas, TX 75270.
The above-referenced meetings are open to stakeholders.
Further information may be found at
The discussions at the meetings described above may address matters at issue in the following proceedings:
Docket No. ER09–35–001,
Docket No. ER09–36–001,
Docket No. ER09–548–001,
Docket No. ER11–4105–000,
Docket No. EL11–34–001,
Docket No. ER11–3967–002,
Docket No. ER11–3967–003,
Docket No. ER12–1179–000,
Docket No. ER12–1415–000,
Docket No. ER12–1460–000,
Docket No. ER12–1610–000,
For more information, contact Luciano Lima, Office of Energy Markets Regulation, Federal Energy Regulatory Commission at (202) 502–6210 or
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the planned Corpus Christi LNG Terminal and Pipeline Project (Project). The Project would involve constructing
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies about the Project. Your input will help the Commission's staff determine what issues need to be evaluated in the EA. Your input will also help the Commission's staff determine whether the preparation of an environmental impact statement would be more appropriate for this project. Comments about the Project may be submitted in writing or verbally. In lieu of or in addition to submitting written comments, the Commission invites you to attend a public scoping meeting scheduled as follows:
FERC Public Scoping Meeting, Corpus Christi LNG Terminal and Pipeline Project, June 26, 2012—6:00 p.m., Portland Community Center, 2000 Bill G Webb Drive, Portland, TX 78374.
Please note that the scoping period will close on July 2, 2012.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a Project representative may contact you about the acquisition of an easement to construct, operate, and maintain the natural gas transmission pipeline facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the facilities, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, a condemnation proceeding could be initiated where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need to Know?” is available for viewing on the FERC Web site (
Corpus Christi Liquefaction, LLC (Corpus Christi Liquefaction) plans to construct and operate a LNG export and import terminal on the north shore of Corpus Christi Bay in Nueces and San Patricio Counties, Texas. The terminal facilities would be capable of liquefying approximately 2.1 billion cubic feet per day of natural gas. These facilities would also be capable of vaporizing approximately 400 million cubic feet per day of LNG. In addition to the liquefaction and vaporization facilities; Corpus Christi Liquefaction plans to construct and operate three LNG storage tanks at the terminal. These tanks would be capable of storing approximately 160,000 cubic meters of LNG. To facilitate the estimated 200 ships per year necessary to export and import LNG, Corpus Christi Liquefaction is also planning to construct and operate a marine berth connecting the terminal to the adjacent La Quinta Channel which provides access to open water shipping routes.
Cheniere Corpus Christi Pipeline, L.P. (Corpus Christi Pipeline) plans to construct and operate an approximately 23-mile-long, 48-inch-diameter, bi-directional, natural gas transmission pipeline (and associated facilities) capable of moving approximately 2.25 billion cubic feet per day of natural gas between the terminal and existing natural gas transmission infrastructure near the City of Sinton, Texas. Corpus Christi Pipeline is also planning to construct and operate two compressor stations; the 12,260 horsepower (hp) Taft Compressor Station and the 41,000 hp Sinton Compressor Station to facilitate the movement of gas within the pipeline.
The general location of the planned facilities is shown in Appendix 1.
Constructing the LNG terminal would require the use of about 891 acres of land. Operating the terminal would require the permanent use of about 326 acres of land. Constructing the pipeline and associated facilities would require the use of about 441 acres of land. Operating the pipeline and associated facilities would require the permanent use of about 202 acres of land. In total, constructing the terminal and pipeline would require the use of about 1,332 acres of land. Operating these facilities would require the permanent use of about 528 acres of land.
The terminal and pipeline would be constructed and operated for the most part on lands previously reviewed by the Commission in FERC Docket Nos. CP04–37, 44, 45 and 46–000. These lands were reviewed for the proposed Cheniere Corpus Christi LNG Project which was approved by the Commission, but never built. The Cheniere Corpus Christi LNG Project would have required the use of about 1,161 acres of land for construction activities and about 712 acres of land for operations-related activities.
The National Environmental Policy Act (NEPA) requires the Commission and other federal agencies to take into account the environmental impacts that could result from an action whenever a federal authorization, permit and/or approval is issued. NEPA also requires the Commission's staff to discover and address concerns the public may have about proposals. The discovery process is commonly referred to as scoping. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of the issues to be addressed in the staff's EA. All comments received will be considered during the preparation of the EA.
In the EA, the Commission's staff will describe the impacts that could occur as a result of constructing and operating the Project under these general headings:
• Geology and soils;
• Water resources and wetlands;
• Vegetation, fisheries and wildlife;
• Threatened and endangered species;
• Socioeconomics;
• Land use and aesthetics;
• Cultural resources;
• Air quality and noise;
• Public safety; and
• Cumulative impacts.
The Commission's staff will also evaluate possible alternatives to the Project or portions of the Project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, the Commission's staff has already initiated its NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of
The EA will present the staff's independent analysis of the issues. If staff determines the preparation of an EA is appropriate, the EA will be placed in the public record, published, and distributed to the public. A comment period will be allotted when the EA is issued. Staff will consider all comments on the EA before making its recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the Public Participation section of this notice.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to environmental issues to formally cooperate with staff in preparing the EA. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided in the Public Participation section of this notice.
The U.S. Department of Energy, Office of Fossil Energy (DOE) has agreed to participate as a cooperating agency in the preparation of the EA to satisfy its NEPA responsibilities. DOE proposes to authorize Corpus Christi Liquefaction, LLC, or affiliated company, to export LNG from the planned Corpus Christi LNG Terminal if DOE determines that such export is not inconsistent with the public interest.
The DOE must meet its obligation under section 3 of the Natural Gas Act of 1938, as amended (NGA), to authorize the import and export of natural gas, including LNG, unless it finds that the proposed import or export will not be consistent with the public interest. The purpose and need for DOE action is to respond to an expected application to DOE seeking authorization to export domestically produced natural gas as LNG from the Corpus Christi LNG Terminal to any country: (1) With which the United States does not have a free trade agreement requiring the national treatment for trade in natural gas, and (2) with which trade is not prohibited by U.S. law or policy.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, staff is using this notice to initiate consultation with applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
Based on a preliminary review of the planned facilities and information provided by Corpus Christi Liquefaction, the Commission's staff has already identified several issues that it thinks deserves attention. This preliminary list of issues may be changed based on your comments and the staff's analysis. These issues are:
• Air quality;
• Water use;
• Aesthetics;
• Transportation;
• Socioeconomics; and
• Public safety.
Because the proposed Project may involve actions in floodplains, in accordance with Title 10 of the Code of Federal Regulations, Part 1022,
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before July 2, 2012.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the project docket number (PF12–3–000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the eComment feature located on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature located on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. Staff will update the environmental mailing list as the analysis proceeds to ensure that it sends the information related to this environmental review to all individuals, organizations, and government entities
Once Corpus Christi Liquefaction files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that the Commission will not accept requests for intervenor status at this time. You must wait until the Commission receives a formal application for the project.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
On May 23, 2012, the Federal Energy Regulatory Commission (Commission) announced that Commission staff will meet with PPL Montana, LLC and the Confederated Salish and Kootenai Tribes on Thursday, June 7, 2012 at 1:00 p.m. EDT at Commission's headquarters, located at 888 First Street NE., Washington, DC 20426, Room 3M–1.
Interested parties may participate in the meeting by telephone. Please contact Gary Cohen, Office of the General Counsel, Federal Energy Regulatory Commission at (202) 502–8321 or
Southeastern Power Administration, DOE.
Notice of extension of time to present written comments.
The period for submitting written comments on Southeastern's proposed rate adjustment is extended to June 19, 2012.
Written comments may be submitted until the close of business June 19, 2012.
Written comments should be submitted to: Kenneth E. Legg, Administrator, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia 30635–6711.
Virgil G. Hobbs, III, Assistant Administrator for Finance and Marketing Division, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia, 30635–6711 (706–213–3838).
On March 7, 2012, Southeastern published a Notice in the
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before August 7, 2012.
Submit your comments, identified by Docket ID No. EPA–HQ–SFUND–2006–0361, by one of the following methods:
•
•
•
•
•
Sicy Jacob, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564–8019; fax number: (202) 564–2620; email address:
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–SFUND–2006–0361 which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under DATES.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Abstract: This information collection request pertains to trade secrecy claims submitted under Section 322 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). EPCRA contains provisions requiring facilities to report to State and local authorities, and EPA, the presence of extremely hazardous substances (Section 302), inventory of hazardous chemicals (Sections 311 and 312) and manufacture, process and use of toxic chemicals (Section 313). Section 322 of EPCRA allows a facility to withhold the specific chemical identity from these EPCRA reports if the facility asserts a claim of trade secrecy for that chemical identity. The provisions in Section 322 establish the requirements and procedures that facilities must follow to request trade secrecy treatment of chemical identities, as well as the procedures for submitting public petitions to the Agency for review of the “sufficiency” of trade secrecy claims.
Trade secrecy protection is provided for specific chemical identities contained in reports submitted under each of the following: (1) Section 303 (d)(2)—Facility notification of changes that have or are about to occur, (2) Section 303 (d)(3)—Local Emergency Planning Committee (LEPC) requests for facility information to develop or implement emergency plans, (3) Section 311—Material Safety Data Sheets (MSDSs) submitted by facilities, or lists of those chemicals submitted in place of the MSDSs, (4) Section 312—Emergency and hazardous chemical inventory forms (Tier I and Tier II), and (5) Section 313 Toxic chemical release inventory form.
Burden Statement: The burden and costs stated below are from the current approved ICR. The annual public reporting and recordkeeping burden for this collection of information is estimated to average 9.8 hours per claim. Prior to submitting ICR package to OMB, the Agency will revise the costs associated with this ICR based on the current labor and wage rates provided in the Bureau of Labor and Statistics, Employer Costs for Employee Compensation.
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 previously applicable instructions and requirements which have subsequently changed; 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.
The current approved ICR 1428.08 provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
Estimated total annual burden hours: 4,658 hours.
Estimated total annual costs: $0, which includes $0 annualized capital or O&M costs.
The burden hours and costs provided here are from the current approved ICR. Prior to submitting the ICR package to OMB, EPA may revise the burden hours and costs based on the current labor and wage rates provided in the Bureau of Labor and Statistics, Employer Costs for Employee Compensation.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another Federal Register notice pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. If you have any questions about this ICR or the approval process, please contact the technical person listed under
Environmental Protection Agency (EPA).
Notice of public comment period and listening session.
EPA is announcing a 60-day public comment period and a public listening session for the external review draft human health assessment titled “Toxicological Review of Ammonia: In Support of Summary Information on the Integrated Risk Information System (IRIS)” (EPA/635/R–11/013A). The draft assessment was prepared by the National Center for Environmental Assessment (NCEA) within the EPA Office of Research and Development (ORD). EPA is releasing this draft assessment for the purposes of public comment and peer review. This draft assessment is not final as described in EPA's information quality guidelines, and it does not represent and should not be construed to represent Agency policy or views.
EPA's Science Advisory Board (SAB) will convene an expert panel for independent external peer review of the draft assessment. The EPA SAB is a body established under the Federal Advisory Committee Act with a broad mandate to advise the Agency on scientific matters. The public comment period and the SAB peer review are separate processes that provide opportunities for all interested parties to comment on the document. The SAB will schedule one or more public peer-review meetings, which will be announced in the
EPA is also announcing a listening session to be held on Thursday, July 12, 2012, during the public comment period. The purpose of the listening session is to allow all interested parties to present scientific and technical comments on the draft IRIS health assessment to EPA and other interested parties attending the listening session. EPA welcomes the scientific and technical comments that will be provided to the Agency by the listening
The public comment period begins, June 8, 2012, and ends August 7, 2012. Technical comments should be in writing and must be received by EPA by August 7, 2012.
The listening session on the draft IRIS health assessment for ammonia will be held on July 12, 2012, beginning at 9 a.m. and ending at 4 p.m., Eastern Standard Time, or when the last presentation has been completed. If you would like to make a presentation at the listening session, you should register by July 3, 2012, following the detailed instructions below under
The draft “Toxicological Review of Ammonia: In Support of Summary Information on the Integrated Risk Information System (IRIS)” is available primarily via the Internet on the NCEA home page under the Recent Additions and Publications menus at
The listening session on the draft assessment of ammonia will be held at the EPA offices at Two Potomac Yard (North Building), 7th Floor, Room 7100, 2733 South Crystal Drive, Arlington, Virginia, 22202. There are two buildings at Potomac Yard, please be sure you go to Building Two, the North Building. Please note that to gain entrance to this EPA building, attendees must register at the guard's desk in the lobby and present photo identification. The guard will retain your photo identification and provide you with a visitor's badge. At the guard's desk, attendees should give the name Christine Ross and the telephone number, 703–347–8592, to the guard on duty. The guard will contact Ms. Ross who will meet you in the reception area to escort you to the meeting room. When you leave the building, please return your visitor's badge to the guard and you will receive your photo identification.
A teleconference line will also be available for registered attendees/speakers. The teleconference number is 866–299–3188 and the access code is 926–378–7897, followed by the pound sign (#). The teleconference line will be activated at 8:45 a.m., and you will be asked to identify yourself and your affiliation at the beginning of the call.
IRIS is a database that contains potential adverse human health effects information that may result from chronic (or lifetime) exposure to specific chemical substances found in the environment. The database (available on the Internet at
To attend the July 12, 2012, listening session, register by July 3, 2012, by sending an email to
Submit your comments, identified by Docket ID No. EPA–HQ–ORD–2012–0399 by one of the following methods:
•
•
•
•
•
All documents in the docket are listed in the
For information on the federal docket, contact the Office of Environmental Information Docket; telephone: 202–566–1752; facsimile: 202–566–9744; or email:
For information on the public listening session, please contact Christine Ross, IRIS Staff, National Center for Environmental Assessment, (8601P), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone: 703–347–8592; facsimile: 703–347–8689; or email:
If you have questions about the document, contact Audrey Galizia, National Center for Environmental Assessment (NCEA); telephone: 732–906–6887; facsimile: 732–452–6429; or email:
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
EPA is seeking agencies to participate in its e-NEPA electronic EIS submission pilot. Participating agencies can fulfill all requirements for EIS filing, eliminating the need to submit paper copies to EPA Headquarters, by filing documents online and providing feedback on the process. To participate in the pilot, register at:
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of request for amendments by registrants to delete uses in certain pesticide registrations. Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any request in the
Unless the Agency receives a written withdrawal request on or before July 9, 2012, the deletions are effective July 9, 2012, because the registrants requested a waiver of the 180-day comment period. Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant on or before July 9, 2012.
Submit your withdrawal request, identified by docket identification (ID) number EPA–HQ–OPP–2012–0281, by one of the following methods:
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Christopher Green, Information Technology and Resources Management Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 347–0367; email address:
This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the information in this notice, consult the person listed under
EPA has established a docket for this action under docket ID number EPA–HQ–OPP–2012–0281. Publicly available docket materials are available either in the electronic docket at
The Docket Facility telephone number is (703) 305–5805.
This notice announces receipt by the Agency of applications from registrants to delete uses in certain pesticide registrations. These registrations are listed in Table 1 of this unit by registration number, product name, active ingredient, and specific uses deleted. The requests listed in the following Table 1 have a 30-day comment period because the registrants requested a waiver of the 180-day comment period.
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant before July 9, 2012, to discuss withdrawal of the application for amendment. This 30-day period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion.
Table 2 of this unit includes the names and addresses of record for all registrants of the products listed in Table 1 of this unit, in sequence by EPA company number.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Registrants who choose to withdraw a request for use deletion must submit the withdrawal in writing to Christopher Green using the methods in
The Agency has authorized the registrants to sell or distribute product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.
Environmental protection, Pesticides and pests.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 5, 2012.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101–2566:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 5, 2012.
A. Federal Reserve Bank of Philadelphia (William Lang, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105–1521:
1.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
The NCVHS has been named in the Patient Protection and Affordable Care Act (ACA) of 2010 to review and make recommendations on several operating rules and standards related to HIPAA transactions. This meeting will support these activities in the development of a set of recommendations for the Secretary, as required by § 1104 of the ACA.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458–4EEO (4336) as soon as possible.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
The morning of the second day will include a review of the final action items discussed on the first day. After lunch, the Committee will discuss NCVHS's plans at the NCHS National Conference on Health Statistics; have a briefing on a Standards Subcommittee meeting; and hear subcommittee reports, strategic plans and discuss next steps. After the full Committee adjourns, the new Working Group on HHS Data Access and Use will convene to discuss work expectations and schedule; and summarize anticipated work products and logistical plans. Further information will be provided on the NCVHS Web site at
The times shown above are for the full Committee meeting. Subcommittee breakout sessions are scheduled for late in the afternoon on the first day and in the morning prior to the full Committee meeting on the second day. Agendas for these breakout sessions will be posted on the NCVHS Web site (URL below) when available.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458–4EEO (4336) as soon as possible.
In accordance with section 10(d) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), announcement is made of a Health Care Policy and Research Special Emphasis Panel (SEP) meeting.
A Special Emphasis Panel is a group of experts in fields related to health care research who are invited by the Agency for Healthcare Research and Quality (AHRQ), and agree to be available, to conduct on an as needed basis, scientific reviews of applications for AHRQ support. Individual members of the Panel do not attend regularly-scheduled meetings and do not serve for fixed terms or a long period of time. Rather, they are asked to participate in particular review meetings which require their type of expertise.
Substantial segments of the upcoming SEP meeting listed below will be closed to the public in accordance with the Federal Advisory Committee Act, section 10(d) of 5 U.S.C., Appendix 2 and 5 U.S.C. 552b(c)(6). Grant applications for the “Patient-Centered Outcomes Research—Dissemination by Health Professionals Associations (PCOR–DHPA) (R18)” applications are to be reviewed and discussed at this meeting. These discussions are likely to reveal personal information concerning individuals associated with the applications. This information is exempt from mandatory disclosure under the above-cited statutes.
Agenda items for this meeting are subject to change as priorities dictate.
In accordance with section 10(d) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), announcement is made of a Health Care Policy and Research Special Emphasis Panel (SEP) meeting.
A Special Emphasis Panel is a group of experts in fields related to health care research who are invited by the Agency for Healthcare Research and Quality (AHRQ), and agree to be available, to conduct on an as needed basis, scientific reviews of applications for AHRQ support. Individual members of the Panel do not attend regularly-scheduled meetings and do not serve for fixed terms or a long period of time. Rather, they are asked to participate in particular review meetings which require their type of expertise.
Substantial segments of the upcoming SEP meeting listed below will be closed to the public in accordance with the Federal Advisory Committee Act, section 10(d) of 5 U.S.C., Appendix 2 and 5 U.S.C. 552b(c)(6). Grant applications for the “Building the Science of Public Reporting (R21)” applications are to be reviewed and discussed at this meeting. These discussions are likely to reveal personal information concerning individuals associated with the applications. This information is exempt from mandatory disclosure under the above-cited statutes.
Agenda items for this meeting are subject to change as priorities dictate.
The meeting announced below concerns Cooperative Research Agreements Related to the World Trade Center Health Program (U01), PAR 12–126, initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the CDC announces the following meeting of the aforementioned subcommittee:
The agenda is subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Generally, MACPro will be used by both State and CMS officials to: Improve the State application and Federal review processes, improve Federal program management of Medicaid programs and CHIP, and standardize Medicaid program data. More specifically, it will be used by State agencies to (among other things): (1) Submit and amend Medicaid State Plans, CHIP State Plans, and Information System Advanced Planning Documents, and (2) submit applications and amendments for State waivers, demonstration, and benchmark and grant programs. It will be used by CMS to (among other things): (1) Provide for the review and disposition of applications, and (2) monitor and track application activity.
This system will be operational in phases, beginning with this first phase or Phase 1, MACPro will include the following three authorities: State Plan and CHIP Eligibility, Alternative Benchmark plans, and 1115 Waiver Demonstration portions/modules to be implemented before January 1, 2013.
A paper-based version of the MACPro instrument would be sizable and time consuming for interested parties to follow as a paper-based instrument. In our effort to provide the public with the most efficient means to make sense of the MACPro system, we will be conducting four webinars in lieu of including a paper-based version of MACPro on CMS' PRA-related Web site.
The webinars will be held:
1. June 13, 2012, from 1 to 3 p.m. EST.
2. June 20, 2012, from 1 to 3 p.m. EST.
3. June 27, 2012, from 1 to 3 p.m. EST.
4. July 11, 2012, from 1 to 3 p.m. EST.
Please note that the webinars will be recorded by CMS and can be accessed by the public at
To obtain copies of the supporting statement for the proposed paperwork collections referenced above, access CMS' Web site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by August 7, 2012:
1.
2.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice describes the standards, criteria, and procedures we will use to evaluate an End-Stage Renal Disease (ESRD) Network Organization's capabilities to perform, and actual performance of, the duties and functions under the ESRD Network Statement of Work (SOW).
Teresa Casey, 410–786–7215. Renee Dupee, 410–786–6747.
Section 1881(c) of the Social Security Act (the Act) authorized the establishment of, among other things, ESRD network areas and Network Organizations under the Medicare program to ensure the effective administration of the ESRD program benefits. We currently have contracts with ESRD Network Organizations to serve the 18 ESRD Network areas.
The existing 18 ESRD Network contracts have been operating under the same Statement of Work (SOW) since 2003 and have been renewed to continue to provide service to the ESRD population. Recent major policy and legislative changes have modernized Medicare payments for ESRD care. In particular, the Medicare Improvements for Patients and Providers Act (MIPPA) required the Secretary of the Department of Health and Human Services (the Secretary) to implement an ESRD bundled payment system under which a single payment is made to a provider of services or a renal dialysis facility for renal dialysis services in lieu of any other payment. MIPPA also required the Secretary to establish an ESRD Quality Incentive Program (QIP).
Additionally, a heightened focus on quality improvement, public reporting and value-based purchasing in healthcare has fueled a growing need for facility-level data collection; analysis; monitoring; trending; evaluating and intervening, where necessary, to improve patient care. We have also emphasized spreading and replicating the best practices of high performing providers. Therefore, a redesigned ESRD Network SOW was drafted to incorporate these priorities in healthcare and changes in legislation. The SOW will charge the ESRD Network Organizations with establishing relationships with patients, families and facilities within their Network areas to reach the objective of optimal patient-centered care.
Section 1881(c)(1)(A)(ii)(I) of the Act provides that in order to determine whether the Secretary should enter into, continue, or terminate an agreement with an ESRD Network Organization, the Secretary shall develop and publish in the
• Encourage participation in vocational rehabilitation programs, and develop criteria and standards relating to this participation.
• Evaluate the procedures used by facilities and providers in the network to assess patients for placement in appropriate treatment modalities.
• Implement a procedure for evaluating and resolving patient grievances.
• Conduct onsite reviews of facilities and providers as necessary (as determined by a medical review board or the Secretary) using standards of care established by the ESRD Network Organization.
• Collect, validate, and analyze data necessary to prepare the required annual report to the Secretary and to ensure the maintenance of a national ESRD registry.
• Identify facilities and providers that are not cooperatively working toward meeting network goals, and assist those facilities and providers in developing plans for correction, as well as report to the Secretary on those facilities and providers that are not providing appropriate care.
• Submit an annual report to the Secretary on July 1 of each year.
Shortly after the publication of this
ESRD Network Organizations are responsible, in addition to other duties and functions that the Secretary prescribes, for performing the tasks outlined in section 1881(c)(2) of the Act.
Under the revised ESRD Network Organization SOW, ESRD Network Organizations will complete the requirements of the three Aims outlined in the SOW which support the functions required by section 1881(c)(2) of the Act. The three Aims are as follows:
• Aim 1, is the “Better Care for the Individual through Beneficiary and Family Centered Care” Aim. This Aim envisions ESRD Networks, facilities and beneficiaries working together to promote appropriateness of patient care and processes for evaluating and resolving patient grievances.
• Aim 2, is the “Better Health for the ESRD Population” Aim. This Aim considers the preparation and education of beneficiaries for transplantation and self-care settings or home dialysis.
• Aim 3, is the “Reduce Costs of ESRD Care by Improving Care” Aim. This Aim has Network Organizations assisting dialysis facilities in meeting the requirements of the ESRD Quality Incentive Program (QIP), supporting dialysis facilities in their submission of data to designated data collection systems and using data to provide necessary reports to CMS and the Secretary.
The “Better Care for the Individual through Beneficiary and Family Centered Care” Aim strives to promote health care that is respectful of and responsive to individual patient preferences, needs, and values. The Network patient-centered domains will achieve Aim 1. Network patient-centered domains are Patient and Family Engagement; Patient Experience of Care; Patient-Appropriate Access to In-Center Dialysis Care; Vascular Access Management; and Patient Safety: Healthcare-Acquired Infections (HAIs).
The ESRD Network Organizations' activities within this Aim will be enhanced by the patient's voice. The ESRD Network Organization will take a two-tiered approach to incorporating the patient's voice in the activities of the Network and the renal community as a whole. The two tiers are: (1) Engagement at the dialysis facility level to foster patient and family involvement; and (2) development and implementation of a beneficiary and family centered care focused Learning and Action Network (LAN) to promote patient and family involvement at the Network level. Both tiers are essential and work together to promote beneficiary and family engagement to improve quality of care.
The “Better Health for the ESRD Population” Aim focuses on improving the quality of and access to ESRD care through a Population Health Innovation Pilot Project in one of the following areas:
• Increase HBV, Influenza, and Pneumococcal Vaccination Rates;
• Improve Dialysis Care Coordination With a Focus on Reducing Hospital Utilization;
• Improve Transplant Coordination;
• Promote Appropriate Home Dialysis in Qualified Beneficiaries; or
• Support Improvement in Quality of Life.
Under the SOW, each ESRD Network Organization will work with low performing dialysis facilities in their Network to conduct one Population Health Innovation Pilot Project and achieve the specified outcome or outcomes for the measures related to the project area. The SOW describes the outcomes the ESRD Network Organization should achieve for each Project; however, the ESRD Network Organizations will develop and implement interventions to increase performance within the participating dialysis facilities. Additionally, ESRD Network Organizations must demonstrate a reduction in one of the disparity areas outlined in the SOW.
The “Reducing Costs of ESRD Care by Improving Care” Aim focuses on supporting the ESRD QIP, facility performance improvement on QIP measures, and facility data submission for CROWNWeb, the National Healthcare Safety Network (NHSN), and/or other CMS-designated data collection system(s).
In order to receive an ESRD Network Contract award, an applicant must demonstrate, through the submission of a technical proposal, the capability to perform the duties listed in the ESRD Network SOW. Technical proposal submissions must detail the applicant's approach to accomplish each of the Aims of the SOW and describe how the applicant will maximize the outcome of the specific tasks within each Aim. Additionally, successful applicants must offer sound quality improvement approaches for the intervention strategies they are proposing to meet the tasks identified in the SOW. The proposed interventions are expected to be evidence-based, efficient and effective. The proposed interventions should also be feasible in the context of the applicant's ESRD Network service area, considering geography and other relevant location-specific factors. Applicants will be expected to offer proposed solutions to anticipated challenges with a reasonable likelihood of success.
Other factors used to determine capability to receive an ESRD Network Contract award include an evaluation of the applicant's relevant past performance, the management structure that the applicant proposes to successfully perform the work of the contract as well as the qualified and experienced staff proposed to administer the tasks of the ESRD Network SOW.
We note that the solicitation posted on Fed Biz Opps is the official notice of the ESRD Network Contract Request for Proposals, and in the event that any terms within this
With a focus on rapid cycle improvement, ESRD Network Organizations' performance of the responsibilities under the SOW will be monitored and measured for improvement on an ongoing basis using self-assessment and Contracting Officer Representative (COR) review. We will monitor the ESRD Network Organization's performance on the Aims and Domains against established criteria, as specified in sections C.2
The qualitative evaluation of the ESRD Network Organizations will be based on the impact of the interventions utilized to accomplish the tasks within the SOW. We will evaluate the interventions for relationship-building, innovation, development of replicable best practices, and sustainability. The quantitative evaluation of the ESRD Network Organizations will be based on the achievement of the measureable targets for each of the Aims, as stated in the ESRD Network SOW (see Section C.4).
The following Tasks will be evaluated in accordance with the measures provided in the SOW:
The contract evaluation will determine if the ESRD Network Organization has met the performance evaluation criteria as specified in C.4 of this Statement of Work. We will evaluate whether a Network Organization has achieved each of the Aims and Domains on an individual basis. In general, evaluation of each Aim will relate only to that area, however in the event of failure in multiple Aims, we reserve the right to take appropriate contract action by, for example, providing warning of the need for adjustment, instituting a formal correction plan, terminating an activity, or recommending early termination of a contract.
An ESRD Network Organization will pass an Aim or Domain if it meets the evaluation criteria specified for that Aim or Domain. An ESRD Network Organization will fail an Aim or Domain if it does not meet the evaluation criteria specified for that Aim or Domain. Any failure for any Aim or Domain may result in that ESRD Network Organization receiving an adverse performance evaluation. Further, failure may impact the ESRD Network Organization's ability to continue similar work in, or eligibility for, award of the next contract cycle of the ESRD Network contract.
We may revise measures, adjust the expected minimum thresholds for satisfactory performance, remove criteria from an Aim and/or Domain evaluation for any of the following reasons, including, but not limited to: Data gathered on Aim and/or Domain; the level of improvement achieved during the contract cycle or in pilot projects currently in progress; information gathered through evaluation of the ESRD Network Program overall; or any unforeseen or other circumstances. Further, in accordance with standard contract procedures, we reserve the right at any time to discontinue an Aim and/or Domain or any other part of this contract regardless of the Network's performance on the Aim and/or Domain. In accordance with section 1881(c)(1)(A)(ii)(I) of the Act, when we make changes to the standards, criteria, and procedures used to evaluate an ESRD Network Organization's capabilities to perform and/or actual performance of the duties and functions under the ESRD Network SOW, we will publish an updated notice in the
If we choose, we may notify the ESRD Network Organization of our intention not to renew the ESRD Network Organization contract. We reserve our termination rights under FAR Part 49.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
In accordance with the provisions of Executive Order 12866, this regulation was not reviewed by the Office of Management and Budget.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces that a public meeting of the Medicare Economic Index Technical Advisory Panel (“the Panel”) will be held on Monday, June 25, 2012. The purpose of the Panel is to review all aspects of the Medicare Economic Index (MEI). This second meeting will focus on MEI price-measurement proxies and the index's productivity adjustment. This meeting is open to the public in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2, section 10(a)).
We will be broadcasting the meeting live via webinar and conference call (for audio purposes). Webinar details will be sent to registered attendees.
John Poisal, Designated Federal Officer, Centers for Medicare & Medicaid Services, Office of the Actuary, Mail stop N3–02–02, 7500 Security Boulevard, Baltimore, MD 21244 or contact Mr. Poisal by phone at (410) 786–6397 or via email at
The Medicare Economic Index Technical Advisory Panel (“the Panel”) was established by the Secretary to conduct a technical review of the Medicare Economic Index (MEI). The review will include the inputs, input weights, price-measurement proxies, and productivity adjustment. For more information on the Panel, see the October 7, 2011
This notice announces the Monday, June 25, 2012 public meeting of the Panel. This meeting will focus on MEI price-measurement proxies and the index's productivity adjustment.
This meeting is open to the public. There will be up to 45 minutes allotted at this meeting for the Panel to hear oral presentations from the public. Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, we will conduct a lottery to determine the speakers for the scheduled open public hearing session. The contact person will notify interested persons regarding their request to speak by 5 p.m. EDT, Wednesday, June 20, 2012. Any presentations that are not selected based on the lottery will be forwarded to the panel for consideration. For this meeting, public comments should focus on MEI price-measurement proxies and the index's productivity adjustment. We require that you declare at the meeting whether you have any financial involvement with manufacturers (or their competitors) of any items or services being discussed.
The Panel will deliberate openly on the topics under consideration. Interested persons may observe the deliberations, but the Panel will not hear further comments during this time except at the request of the chairperson. The Panel will also allow up to 15 minutes for an unscheduled open public session for any attendee to address issues specific to the topics under consideration.
HCD International is coordinating meeting registration. While there is no registration fee, individuals must register to attend. You may register online at
This meeting will be held in a Federal Government building; therefore, Federal security measures are applicable. We recommend that confirmed registrants arrive reasonably early, but no earlier than 45 minutes prior to the start of the meeting, to allow additional time to clear security. Security measures include the following:
• Presentation of government-issued photographic identification to the Federal Protective Service or Guard Service personnel.
• Inspection of vehicle's interior and exterior (this includes engine and trunk inspection) at the entrance to the grounds. Parking permits and instructions will be issued after the vehicle inspection.
• Inspection, via metal detector or other applicable means, of all persons entering the building. We note that all items brought into CMS, whether personal or for the purpose of presentation or to support a presentation, are subject to inspection. We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set-up, safety, or timely arrival of any personal belongings or items used for presentation or to support a presentation.
Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting. The public may not enter the building earlier than 45 minutes prior to the convening of the meeting. All visitors must be escorted in areas other than the lower and first floor levels in the Central Building.
5 U.S.C. App. 2, section 10(a).
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6284, Silver Spring, MD 20993–0002, 301–796–3602.
In FR Doc. 2012–26017 in the
1. On page 26017, in the third column, in the last paragraph, “U.S. Patent Nos. 5,795,685 and 7,276,480” is corrected to read “U.S. Patent Nos. 5,795,865 and 7,276,480.”
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA is opening a docket for public comment on this meeting. The docket number is FDA–2012–N–0548. The docket will open for public comment on June 8, 2012. The docket will close on November 6, 2012. Interested persons may submit either electronic or written comments regarding this meeting. Submit electronic comments to
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kristina Toliver at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is withdrawing approval of the familial adenomatous polyposis (FAP) indication for CELEBREX (celecoxib) Capsules held by Pfizer, Inc. (Pfizer), 235 East 42nd St., New York, NY 10017–5755. Pfizer has voluntarily requested that approval of this indication be withdrawn, thereby waiving its opportunity for a hearing.
Effective June 8, 2012.
Martha Nguyen, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6250, Silver Spring, MD 20993–0002, 301–796–3601.
FDA approved the FAP indication for CELEBREX on December 23, 1999, under the Agency's accelerated approval regulations, 21 CFR part 314, subpart H. In addition to FAP, CELEBREX is indicated for the relief of the signs and symptoms of osteoarthritis, rheumatoid arthritis, juvenile rheumatoid arthritis in patients 2 years and older, ankylosing spondylitis, primary dysmenorrhea, and for the management of acute pain in adults. Withdrawal of approval of the FAP indication does not affect any other approved indication for CELEBREX. On February 2, 2011, FDA requested that Pfizer voluntarily withdraw the FAP indication for CELEBREX (celecoxib) Capsules from the market because the postmarketing study intended to verify clinical benefit and required as a condition of approval under subpart H was never completed. In a letter dated February 3, 2011, Pfizer requested that FDA withdraw the FAP indication for CELEBREX (celecoxib) Capsules from the market. In that letter, Pfizer waived any opportunity for a hearing otherwise provided under 21 CFR 314.150 and 314.530, and noted that withdrawal of the FAP indication was not “due to any new efficacy or safety data.” In FDA's letter of February 4, 2011, the Agency acknowledged Pfizer's agreement to permit FDA to withdraw the FAP indication for CELEBREX (celecoxib) Capsules under 21 CFR 314.150(d) and waive its opportunity for a hearing.
Therefore, under section 505(e) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(e)) and 21 CFR 314.150(d), and under authority delegated by the Commissioner to the Director, Center for Drug Evaluation and Research, approval of the FAP indication for CELEBREX (celecoxib) Capsules is withdrawn (see
30-Day Notice of Information Collection Under Review; Form I–102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until July 9, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief Regulatory Coordinator, Regulatory Coordination Division, Office of Policy and Strategy, Clearance
When submitting comments by email please make sure to add OMB Control Number 1615–0079 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(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, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529, Telephone number 202–272–1470.
30-Day Notice of Information Collection Under Review: Form I–590, Registration for Classification as Refugee.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until July 9, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Coordination Division, Office of Policy and Strategy, Clearance Office, 20 Massachusetts Avenue NW., Washington, DC 20529. Comments may also be submitted to DHS via email
(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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(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, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529; Telephone 202–272–1470.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Amspec Services LLC, as a commercial gauger and laboratory.
Notice is hereby given that, pursuant to 19 CFR 151.12 and 19 CFR 151.13, Amspec Services LLC, 875 Waterman Avenue, East Providence, RI 02914, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to c
The accreditation and approval of Amspec Services LLC, as commercial gauger and laboratory became effective on January 20, 2012. The next triennial inspection date will be scheduled for January 2015.
Christopher Mocella, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, 202–344–1060.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Amspec Services LLC, as a commercial gauger and laboratory.
Notice is hereby given that, pursuant to 19 CFR 151.12 and 19 CFR 151.13, Amspec Services LLC, 100 Wheeler Street, Unit G, New Haven, CT 06512, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
The accreditation and approval of Amspec Services LLC, as commercial gauger and laboratory became effective on January 06, 2012. The next triennial inspection date will be scheduled for January 2015.
Christopher Mocella, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, 202–344–1060.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Inspectorate America Corporation, as a commercial gauger and laboratory.
Notice is hereby given that, pursuant to 19 CFR 151.12 and 19 CFR 151.13, Inspectorate America Corporation, 141 N. Pasadena Blvd., Pasadena, TX 77506, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquires regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
The accreditation and approval of Inspectorate America Corporation, as commercial gauger and laboratory
Jonathan McGrath, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, 202–344–1060.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Saybolt LP, as a commercial gauger and laboratory.
Notice is hereby given that, pursuant to 19 CFR 151.12 and 19 CFR 151.13, Saybolt LP, 18251 Cascades Ave. South Suite A, Tukwila, WA 98188, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
The accreditation and approval of Saybolt LP, as commercial gauger and laboratory became effective on June 9, 2011. The next triennial inspection date will be scheduled for June 2014.
Christopher Mocella, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, 202–344–1060.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Certificate of Registration. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with a change to the burden hours. This document is published to obtain comments from the public and affected agencies. This information collection was previously published in the
Written comments should be received on or before July 9, 2012.
Interested persons are invited to submit written comments on this information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for U.S. Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L.104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies'/components' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
CBP Form 4455,
CBP Forms 4457 and 4455 are used to provide a convenient means of showing
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing information collection.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Guam-CNMI Visa Waiver Information (CBP Form I–736). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This information collection was previously published in the
Written comments should be received on or before July 9, 2012.
Interested persons are invited to submit written comments on this information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for U.S. Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies'/components' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 708–1234; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Division of Property Management, Program Support Center, HHS, room 5B–17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443–2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses:
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before July 9, 2012.
Brenda Tapia, Division of Management Authority, U.S. Fish and
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests renewal and amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genus, and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal and amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genus, and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import biological samples from American crocodiles (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import biologically samples from wild-caught diademed sifaka (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of issuance of permits.
We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species. We issue these permits under the Endangered Species Act (ESA).
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280; or email
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
On the dates below, as authorized by the provisions of the ESA (16 U.S.C. 1531
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280.
U.S. Geological Survey, Interior.
Notice of Feedback Process.
The U.S. Geological Survey is creating 10-year strategies for each of its Mission Areas: Climate and Land Use Change, Core Science Systems, Ecosystems, Energy and Minerals, Environmental Health, Natural Hazards, and Water. This process involves gathering input from the public on draft strategy documents. Feedback can be offered at
The comment period on questions and drafts closes at midnight on August 1, 2012.
Listed below are contacts for each USGS Mission Area:
Feedback can be offered and additional information accessed at
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on July 9, 2012.
Protests of the survey must be filed before July 9, 2012 to be considered.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669.
Thomas Laakso, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669, telephone (406) 896–5125 or (406) 896–5009,
This survey was executed at the request of the U.S. Army Corps of Engineers, Omaha District, and was necessary to determine federal interest lands.
The lands we surveyed are:
The plat, in one sheet, representing the dependent resurvey of a portion of the south boundary and a portion of the subdivisional lines and the subdivision of section 31, Township 22 North, Range 38 East, Principal Meridian, Montana, was accepted May 29, 2012.
We will place a copy of the plat, in one sheet, and related field notes we described in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in one sheet, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in one sheet, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. Chap. 3.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on May 2, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Nokia Corporation of Finland; Nokia Inc. of Sunnyvale, California; and Intellisync Corporation of Sunnyvale, California. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic devices, including mobile phones and tablet computers, and components thereof by reason of infringement of certain claims of U.S. Patent No. 5,570,369 (“the '369 patent”); U.S. Patent No. 5,884,190 (“the '190 patent”); U.S. Patent No. 6,141,664 (“the '664 patent”); U.S. Patent No. 6,393,260 (“the '260 patent”); U.S. Patent No. 6,728,530 (“the '530 patent”); U.S. Patent No. 7,106,293 (“the '293 patent”); U.S. Patent No. 7,209,911 (“the '911 patent”); U.S. Patent No. 7,365,529 (“the '529 patent”); and U.S. Patent No. 7,415,247 (“the '247 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m.
The Office of the Secretary, Docket Services Division, U.S. International Trade Commission, telephone (202) 205–1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain electronics devices, including mobile phones and tablet computers, and components thereof that infringe one or more of claims 1–3 and 5–9 of the '369 patent; claim 1 of the '190 patent; claims 3, 4, 21, 27, 28, 37, 38, 43, 44, 61, 67, 68, 77, and 78 of the '664 patent; claims 6, 8, 10, and 11 of the '260 patent; claims 1–4, 7–10, and 14–18 of the '530 patent; claims 7, 9–11, and 13 of the '293 patent; claims 2, 6, and 9–14 of the '911 patent; claims 1, 2, 4–13, 15–27, and 30 of the '529 patent; claims 2, 10, 11, 14, 18, 19, 21, and 23 of the '247 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(3) For the investigation so instituted, the Honorable Paul J. Luckern, Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Notice is hereby given that on June 4, 2012, a proposed Consent Decree in
The proposed Consent Decree resolves violations alleged in the Complaint filed against the Municipality of Arecibo (“Arecibo”) which generally alleges that: (1) Arecibo failed to timely obtain coverage under the Small MS4 General Permit; (2) Arecibo discharged storm water into waters of the United States without a permit until receiving coverage under the Small MS4 General Permit; (3) Arecibo violates its Small MS4 General Permit by discharging sewage and sewage sludge not permitted by its permit; failing to develop, implement and enforce a program to detect and eliminate illicit discharges or to take all reasonable steps to minimize or prevent any discharges in violation of its permit; and failing to properly operate and maintain its system; and (4) discharges untreated sewage from its MS4 onto public and private property and into residential dwellings and other buildings where the public has or may have come into contact with the sewage.
The proposed Consent Decree addresses the violations identified above by requiring Arecibo to conduct the following: Implement a Storm Water Management Plan (SWMP); provide training to the Municipality's employees who are responsible for complying with the terms of the Consent Decree and annual training for all employees that work at the pump station; comply with the Operation and Preventive Maintenance Plan recently approved by EPA; construct a New Pump Station and three storm water retention ponds; implement interim pump station operation procedures until the New Pump Station is in operation (including cleaning, disinfection, disposal and sampling); and completion of required closed circuit television studies of various watershed areas in the Municipality and repair and/or replace sewers as necessary. The injunctive relief to be completed under the Consent Decree is estimated to cost approximately $56 million. Arecibo also agrees to pay a civil penalty of $305,643 in three installment payments over the next two years.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
The Consent Decree may be examined at the Office of the United States Attorney, Torre Chardon Suite 1201, 350 Carlos Chardon Avenue, San Juan, Puerto Rico 00918, and at U.S. EPA CEPD office, City View Plaza—Suite 7000, #48 Rd. 165 KM. 1.2, Guaynabo, Puerto Rico 00968–8069. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on June 4, 2012, a proposed Consent Decree (“Consent Decree”) in
In this action, the United States sought injunctive relief and civil penalties from INEOS USA LLC (“INEOS”) for alleged violations of Section 112 of the Clean Air Act (“CAA”), 42 U.S.C. § 7412; the federally enforceable Ohio State Implementation Plan; INEOS's CAA Permit-to-Install Numbered 03–9227; INEOS's CAA Title V Permit No. 03–02–02–0015; Section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9603(a); and Sections 304(a) and (b) of the Emergency Planning and Community Right-To-Know Act (“EPCRA”), 42 U.S.C. 11004(a) and (b). The alleged violations occurred at INEOS' chemical manufacturing plant in Lima, Ohio.
Under the Consent Decree, INEOS is required to undertake the following: (i) Implement an enhanced leak detection and repair program; (ii) improve training, reporting and recordkeeping on bypassing a control device; and (iii) undertake a root cause analysis of CERCLA/EPCRA reportable quantity releases; review and update CERCLA/EPRCA emergency notification training; and perform a CERCLA/EPCRA audit. INEOS also will pay a civil penalty of $1,150,000.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
Notice is hereby given that on June 1, 2012, a proposed Amendment to the Consent Decree in
The Original Consent Decree that was entered in 1996 involves the Cortese Landfill Superfund Site, located in the Town of Tusten, Sullivan County, New York. The Amendment to the Consent Decree modifies the Original Consent Decree to require implementation of a modified remedy that the United States Environmental Protection Agency has selected for the Site.
In the course of the performance of the original remedy, two additional sources of contamination were discovered beneath a former drum disposal areas at the Site, which required the selection of an additional response action to address this newly identified source-area contamination. Accordingly, EPA modified the original remedy to provide for air sparging/soil vapor extraction and amendment addition (
The Department of Justice will receive for a period of 30 days from the date of this publication comments relating to the Amendment to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Amendment to the Consent Decree may also be examined on the following Department of Justice Web site:
Notice is hereby given that on May 31, 2012, a proposed Consent Decree in
In this action, the United States sought injunctive relief and civil penalties from SABIC Innovative Plastics US LLC and SABIC Innovative Plastics Mt. Vernon (“Defendants”) for violations of Section 112 of the Clean Air Act (“CAA”), 42 U.S.C. 7412, and the implementing regulations found at 40 CFR part 63, subparts F, G, and H (National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry and Organic Hazardous Air Pollutants for Equipment Leaks). The violations alleged occurred at Defendants' chemical manufacturing plants located in Mt. Vernon, Indiana and Burkville, Alabama. The proposed Decree resolves the United States' claims against Defendants by requiring Defendants to implement an Enhanced Leak Detection and Repair Program to mitigate any potential excess emissions resulting from past CAA violations; implement controls on an API oil/water separator as additional injunctive relief; implement controls on certain process vents as a Supplemental Environmental Project, and pay a civil penalty in the amount of $1,012,873.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to this Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Dennis Wendt, individually and as Trustee of the Dennis Wendt Trust Co., Wendt Construction Co., Inc., and
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Kim Smaczniak, Trial Attorney, P.O. Box 7611, Washington, DC 20044, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Northern District of California, Phillip Burton Federal Building and United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102. In addition, the proposed Consent Decree may be examined electronically at
Notice is hereby given that, on May 9, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NCOIC intends to file additional written notifications disclosing all changes in membership.
On November 19, 2004, NCOIC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 16, 2012. A notice was published in the
Notice is hereby given that, on May 7, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, ADEX Machining Technologies, Greenville, SC; CarboMet, LLC, Morristown, NJ; Directed Energy Technologies, Inc., Sumerduck, VA; EFW Inc., Fort Worth, TX; El Dorado Engineering, Inc., Salt Lake City, UT; Mayflower Communications Company, Inc., Burlington, MA; Mecar USA Inc., Marshall, TX; Miltec Machining, Inc., Pensacola, FL; and Stevens Institute of Technology, Hoboken, NJ, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NWEC intends to file additional written notifications disclosing all changes in membership.
On May 2, 2000, NWEC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 23, 2012. A notice was published in the
Notice is hereby given that, on April 30, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Alliant Techsystems, Inc., Minneapolis, MN; American Android Corp., Princeton, NJ; API Defense, Inc., Windber, PA; ATI Industrial Automation, Apex, NC; BBN Technologies Corp., Cambridge, MA; BioRobots, LLC, Cleveland, OH; Defense Research Associates Inc., Beavercreek, OH; Elbit Systems of America, LLC, Ft. Worth, TX; Great Lakes Sound & Vibration, Inc. (GLSV), Houghton, MI; Integration Innovation Inc., Huntsville, AL; John H. Northrop & Associates, Inc., Burke, VA; Lithos Robotics Corporation, Amherst, NY; Mechatron Inc., Somerville, MA; Mercedes-Benz Research & Development North America, Inc., Palo Alto, CA; Oakland University, Rochester, MI; Robotics Research Corporation, Cincinnati, OH; Square One Systems Design, Inc., Jackson, WY; The Boeing Company, Seattle, WA; The George Washington University, Washington, DC; University of Southern California, Marina del Rey, CA; Valde Systems, Inc., Nashua, NH; and Virtus Advanced Sensors, Pittsburgh, PA, have withdrawn as parties from this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and RTC intends to file additional written notifications disclosing all changes in membership.
On October 15, 2009, RTC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 22, 2011. A notice was published in the
Notice is hereby given that, on May 3, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: Warner Bros. Entertainment Inc., Burbank, CA; Twentieth Century Fox Innovations, Inc., Los Angeles, CA; SanDisk Corporation, Milpitas, CA; and Western Digital Technologies, Inc., Irvine, CA.
The general area of SCSA's planned activity is to develop, acquire, own, license and promote technology to facilitate the distribution, use and sale of digital content while allowing content owners to prevent the unauthorized interception, copying and redistribution of that content. This technology will include, but is not necessarily limited to, methods for data encryption, encrypting key management, encryption renewability, and forensic tracing (the “Technology”). The parties anticipate the relevant content will be valuable commercial content protected by copyrights and other intellectual property rights. The Technology is intended to interact with other suitable content protection technologies in order to promote the flexible use of such content by consumers while continuing to maintain appropriate security. Through a limited liability corporation formed by the parties or their affiliates, the parties will promote and license the Technology to facilitate broad adoption and enable new lines of business in affected industries.
In furtherance of the purposes stated above, the parties and their affiliates may, among other things, engage in theoretical analysis; experimentation; systematic study; research; development; testing; extension of investigative findings or theories of a scientific or technical nature into practical application for experimental and demonstration purposes; collection, exchange and analysis of research or production information; solicitation from industry of feedback on specifications and licenses; develop, publish and license specifications pertaining to the protection of high value digital content on a variety of consumer devices; enter into agreements to carry out the objectives of the parties; establish and operate facilities in the United States for conducting such venture; conduct such venture on a protected and proprietary basis; prosecute applications for patents and grant licenses for the results of such venture; and any combination of these activities.
Notice is hereby given that, on April 30, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, adapt laser systems, LLC, Kansas City, MO; Advanced Processing Technologies (AVPRO), Norman, OK; Anglicotech LLC, Alpharetta, GA; Assembly Guidance Systems, Inc., Chelmsford, MA; Concurrent Technologies Corporation, Johnstown, PA; GKN Aerospace, Tallassee, AL; The Marlin Group, Arlington, VA; New Mexico Computing Applications Center (NMCAC); One Network Enterprises, Inc., Dallas, TX; Optomec, Inc., Albuquerque, NM; The Pacific Center for Advanced Technology Training (PCATT) at Honolulu Community College, Honolulu, HI; Packer Engineering, Inc., Naperville, IL; Parametric Technology Corporation (PTC), Waltham, MA; PDQ Precision Inc., National City, CA; Portal Dynamics, Inc., Alexandria, VA; REI Systems, Inc., Vienna, VA; Steinbichler Optotechnik GmbH, Neubeuern, Germany; and Superior Controls, Plymouth, MI, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NCMS intends to file additional written notifications disclosing all changes in membership.
On February 20, 1987, NCMS filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 22, 2011. A notice was published in the
Notice is hereby given that, on May 2, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, UNICON, Inc., Chandler, AZ; Kyung Hee Cyber University, Seoul, REPUBLIC OF KOREA; and Kaplan Global Solutions, Fort Lauderdale, FL, have withdrawn as parties to this venture.
In addition, Sungard Higher Education has changed its name to Ellucian, Malvern, PA.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and IMS Global Learning Consortium, Inc. intends to file additional written notifications disclosing all changes in membership.
On April 7, 2000, IMS Global Learning Consortium, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 6, 2012. A notice was published in the
Notice is hereby given that, on May 11, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 15, 2004, ASTM filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 10, 2012. A notice was published in the
Pursuant to Title 21 Code of Federal Regulations 1301.34(a), this is notice that on April 12, 2012, Research Triangle Institute, Hermann Building, East Institute Drive, P.O. Box 12194, Research Triangle Park, North Carolina 27709, made application by renewal to the Drug Enforcement Administration (DEA) for registration as an importer of the following basic classes of controlled substances:
The company plans to import small quantities of the listed controlled substances for the National Institute on Drug Abuse (NIDA) for research activities.
Comments and requests for hearings on applications to import narcotic raw material are not appropriate. 72 FR 3417 (2007).
In regard to the non-narcotic raw material, any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances listed in schedule I or II, which fall under the authority of section 1002(a)(2)(B) of the Act (21 U.S.C. 952(a)(2)(B)) may, in the circumstances set forth in 21 U.S.C. 958(i), file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than July 9, 2012.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
By Notice dated April 2, 2012, and published in the Federal Register on April 12, 2012, 77 FR 21998, Meda Pharmaceuticals, Inc., 705 Eldorado Street, Decatur, Illinois 62523, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of Nabilone (7379), a basic class of controlled substance listed in schedule II.
The company plans to import the listed controlled substance for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a), and determined that the registration of Meda Pharmaceuticals Inc. to import the basic class of controlled substance is consistent with the public interest, and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. DEA has investigated Meda Pharmaceuticals Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 1, 2012, Rhodes Technologies, 498 Washington Street, Coventry, Rhode Island 02816, made application to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of
The company plans to manufacture the listed controlled substance in bulk for conversion and sale to dosage form manufacturers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than August 7, 2012.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on April 4, 2012, S&B Pharma Inc., 405 South Motor Avenue, Azusa, California 91702–3232, made application to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture bulk controlled substances for use in product development and for distribution to its customers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control,
By Notice dated January 30, 2012, and published in the
The company plans to manufacture the listed substance for analytical research and clinical trials.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a), and determined that the registration of Pharmagra Labs, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Pharmagra Labs, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
Office of Federal Procurement Policy, Office of Management and Budget.
Proposed revision to Office of Management and Budget Circular No. A–131, “Value Engineering”.
The Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) is proposing to revise OMB Circular A–131, Value Engineering, to update and reinforce policies associated with the consideration and use of Value Engineering (VE). VE is an effective technique for cutting waste and inefficiency—helping Federal agencies save billions of dollars in program and acquisition costs, improve performance, enhance quality, and foster the use of innovation. The proposed revisions are designed to ensure that the Federal Government has the capabilities and tools to consider and apply VE techniques to the maximum extent appropriate.
Interested parties should submit comments in writing to the address below on or before August 7, 2012.
Comments may be submitted by any of the following methods:
•
•
•
Curtina Smith, OFPP,
Value Engineering (VE) refers to an organized effort to analyze functions of systems, equipment, facilities, services, and supplies for the purpose of achieving the essential functions at the lowest life-cycle cost consistent with required levels of performance, reliability, quality, and safety. Industry first developed VE during World War II as a means of continuing production despite shortages of critical materials by analyzing functions to generate alternative materials or systems to accomplish the required tasksat a lower cost. The Federal Government subsequently adopted this tool as a mechanism to incentivize contractors to continually think of ways to drive greater efficiency in their production methodologies by allowing them to share with the Government in the savings generated by their value engineering change proposals. VE can reduce program costs and optimize performance.
Currently, several Federal agencies have reported life-cycle savings through the use of VE in a broad range of acquisition programs, such as those involving defense systems, transportation, construction, engineering, environmental, and manufacturing projects. According to annual reports of VE activities submitted by Federal agencies to OMB, value engineering generates billions of dollars in savings and cost avoidance annually for the Federal Government. For example, the Department of Defense (DOD) reported savings of nearly $2 billion in fiscal year (FY) 2009 and $3.4 billion in FY 2010. The Department of Transportation's Federal Highway Administration reports that annual savings for Federally-funded state construction projects have ranged from $1.8 to $3.2 billion between 2005 and 2009. The Department of State reports that it has used VE to identify hundreds of millions of dollars in total life cycle savings since FY 2008—saving an average of $46 for every one dollar invested in VE studies. Opportunities for savings exist at other agencies.
OMB Circular A–131 requires agencies to establish VE programs so that the agencies will realize the benefits of using VE techniques to reduce nonessential contract and program costs. OMB first issued the Circular in January 1988 (53 FR 3140), and the Circular was last revised in May 1993 (58 FR 31056). The Circular specifically requires agencies to: (1) Identify a focal point within each agency to monitor, manage and maintain data on agency VE programs; (2) establish criteria and guidelines for screening programs and projects which might benefit from the application of VE techniques; (3) develop guidelines to evaluate VE proposals; (4) actively solicit VE ideas from contractors; and (5) emphasize, through training and other means, the potential of VE to reduce unnecessary costs. Since issuing the Circular in 1988, OMB has issued three memoranda in April 1995, October 1996, and February 1997 emphasizing the importance and benefits of VE and reminding agencies of their responsibilities under the program. As a result of proposed revisions in this notice, the previously-issued OMB memoranda have been overtaken by events and are hereby formally rescinded.
In this notice, OFPP is proposing to revise Circular A–131 to reflect present-day buying strategies and practices, such as performance-based service contracting, to ensure that the Federal Government is effectively considering and taking full advantage of VE, whenever appropriate, to cut waste and inefficiency and promote greater fiscal responsibility. The revisions that are proposed in this notice would:
•
•
•
•
•
•
•
•
OMB requests comments on these proposals as well as on other aspects of the Circular.
Millennium Challenge Corporation.
Notice of the June 21, 2012, Millennium Challenge Corporation Board of Directors Meeting.
3:00 p.m. to 5:00 p.m., Wednesday, June 21, 2012.
Department of State, 2201 C Street NW., Washington, DC 20520.
Information on the meeting may be obtained from Melvin F. Williams, Jr., Vice President, General Counsel and Corporate Secretary via email at
Meeting will be closed to the public.
The Board of Directors (the “Board”) of the Millennium Challenge Corporation (“MCC”) will hold a meeting to discuss updates on Malawi and Mali, highlights of completed compacts, and an audit committee report. The agenda items are expected to involve the consideration of classified information and the meeting will be closed to the public.
Millennium Challenge Corporation.
The Millennium Challenge Corporation (MCC) is reporting for the quarter January 1, 2012 through March 31, 2012, on assistance provided under section 605 of the Millennium Challenge Act of 2003 (22 U.S.C. 7701
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Heliophysics Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, July 2, 2012, 9 a.m. to 5 p.m., and Tuesday, July 3, 2012, 8:30 a.m. to 5 p.m., Local Time.
NASA Headquarters, 300 E Street SW., Room 6H45, Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–4452, fax (202) 358–1377, or
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Marian Norris via email at
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering the renewal of NRC License SNM–2505 for the continued operation of the Independent Spent Fuel Storage Installation (ISFSI) at the Calvert Cliffs Nuclear Power Plant site near Lusby, Maryland. The NRC has prepared an Environmental Assessment (EA) of this proposed license renewal in accordance with its regulations. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate. The NRC also is conducting a safety evaluation of the proposed license renewal.
Please refer to Docket ID NRC–2011–0085 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly-available, using the following methods:
•
•
•
James R. Park, Project Manager, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–6935; email:
By letter dated September 17, 2010, Calvert Cliffs Nuclear Power Plant, LLC (CCNPP) submitted an application to the NRC to renew NRC License SNM–2505 for the CCNPP site-specific Independent Spent Fuel Storage Installation (ISFSI) that expires on November 30, 2012. CCNPP is requesting renewal of NRC License SNM–2505 for a 40-year period to authorize CCNPP to continue ISFSI operations at the Calvert Cliffs site near Lusby, Maryland. CCNPP supplemented its application on February 10, 2011. On March 11, 2011, the NRC staff found CCNPP's application to be acceptable for a detailed review. In response to NRC staff requests for additional information, CCNPP provided supplemental information on June 14, June 28, and December 15, 2011.
The NRC staff has prepared an EA to document its environmental review of the proposed license renewal. The NRC staff considered the following environmental resource areas in its evaluation: land use; transportation; socioeconomics; air quality; water quality and use; geology and soils; ecology; noise; historical and cultural; scenic and visual; public and occupational health and safety; and waste management. Based on the NRC staff's evaluation, the potential environmental impacts on these resource areas were determined to be small. In its license renewal request, CCNPP is proposing no changes in how it handles or stores spent fuel at the ISFSI, and no significant changes in CCNPP's authorized operations for the ISFSI are planned during the proposed
The NRC staff consulted with other federal and state agencies and Native American Indian tribes regarding the proposed action, including: The U.S. Fish and Wildlife Service, the National Oceanic and Atmospheric Administration (National Marine Fisheries Service), the Maryland Department of Natural Resources, the Maryland Department of the Environment, the Maryland Historic Trust, the Piscataway Indian Nation, the Piscataway Conoy Confederacy and Subtribes, the Cedarville Band of Piscataway Indians, and the Maryland Commission on African American History and Culture. These consultations ensured that the requirements of Section 7 of the Endangered Species Act and Section 106 of the National Historic Preservation Act were met and provided the designated state liaison agency the opportunity to comment on the proposed action and the EA.
On the basis of the EA, the NRC has concluded that the proposed license renewal will not significantly affect the quality of the human environment. Therefore, preparation of an environmental impact statement is not warranted for the proposed action and a finding of no significant impact is appropriate.
Documents related to this action, including the license renewal application and supporting documentation, are available online in the NRC Library at
If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's Public Document Room (PDR) Reference staff at 1–800–397–4209, 301–415–4737 or by email to
These documents may also be viewed electronically on the public computers located at the NRC's PDR, O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. Hard copies of the documents are available from the PDR for a fee.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Week of June 4, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
8:45 a.m. Discussion of Management and Personnel Issues (Closed—Ex. 2 and 6)
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
By a vote of 5–0 on June 5, 2012, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that the above referenced Discussion of Management and Personnel Issues be held with less than one week notice to the public. The meeting is scheduled on June 7, 2012.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301–415–2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an email to
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
Federated Investment Management Company (“Federated”) and Federated ETF Trust (the “Trust”).
Applicants request an order that permits: (a) Series of certain actively managed open-end management investment companies to issue shares (“Shares”) redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Shares to occur at negotiated market prices; (c) certain series to pay redemption proceeds, under certain circumstances, more than seven days from the tender of Shares for redemption; (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the series to acquire Shares.
The application was filed on August 26, 2011, and amended on February 22, 2012, March 21, 2012, May 8, 2012, and May 22, 2012.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on June 25, 2012, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: c/o Stacy L. Fuller, Esq., K&L Gates LLP, 1601 K Street NW., Washington, DC 20006.
Bruce R. MacNeil, Senior Counsel, at (202) 551–6817 or Daniele Marchesani, Branch Chief, at (202) 551–6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Trust is a statutory trust organized under the laws of Delaware and will be registered as an open-end management investment company under the Act. The Trust will initially offer one actively-managed investment series: Federated Active Ultrashort Fixed Income ETF (the “Initial Fund”). The investment objective of the Initial Fund will be to seek to outperform the 3-month LIBOR by investing in fixed and floating rate fixed income instruments.
2. Applicants request that the order apply to the Initial Fund and any future series of the Trust or of other existing or future open-end management companies that may utilize active management investment strategies (“Future Funds”). Any Future Fund will (a) be advised by Federated or an entity controlling, controlled by, or under common control with Federated (together with Federated, an “Advisor”), and (b) comply with the terms and conditions of the application.
3. Federated, a Pennsylvania corporation, will be the investment advisor to the Initial Fund. Each Advisor is or will be registered as an “investment adviser” under the Investment Advisers Act of 1940 (the “Advisers Act”). The Advisor may retain investment advisers as sub-advisers in connection with the Funds (each, a “Subadvisor”). Any Subadvisor will be registered under the Advisers Act. A registered broker-dealer under the Securities Exchange Act of 1934 (“Exchange Act”), which may be an affiliate of the Advisor, will act as the distributor and principal underwriter of the Funds (“Distributor”). Applicants request that the order apply also to any future Distributor of Shares that complies with the terms and conditions of the application.
4. Shares of each Fund will be purchased from the Trust only in Creation Units through the Distributor on a continuous basis at net asset value (“NAV”) next determined after an order in proper form is received.
5. The Initial Fund and certain Future Funds will generally be purchased entirely for cash as permissible under the procedures described below and will generally be redeemed in-kind. However, the Trust reserves the right to accept and deliver Creation Units of the Initial Fund and any Future Fund by means of an in-kind tender of specified instruments. Purchasers will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and shareholders redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”).
6. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) To the extent there is a Cash Amount, as described above; (b) if, on a given Business Day, the Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, the Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash; (d) if, on a given Business Day, the Fund requires all Authorized Participants purchasing or redeeming Shares on that day to deposit or receive (as applicable) cash in lieu of some or all of the Deposit Instruments or Redemption Instruments, respectively, solely because: (i) Such instruments are not eligible for transfer through either the NSCC Process or DTC Process; or (ii) in the case of Funds holding non-U.S. investments (“Global Funds”), such instruments are not eligible for trading due to local trading restrictions, local restrictions on securities transfers or other similar circumstances; or (e) if the Fund permits an Authorized Participant to deposit or receive (as applicable) cash in lieu of some or all of the Deposit Instruments or Redemption Instruments, respectively, solely because: (i) such instruments are, in the case of the purchase of a Creation Unit, not available in sufficient quantity; (ii) such instruments are not eligible for trading by an Authorized Participant or the investor on whose behalf the Authorized Participant is acting; or (iii) a holder of Shares of a Global Fund would be subject to unfavorable income tax treatment if the holder receives redemption proceeds in kind.
7. Each Business Day, before the open of trading on the national securities
8. An investor purchasing a Creation Unit from a Fund may be charged a fee (“Transaction Fee”) to protect existing shareholders of the Funds from the dilutive costs associated with the purchase and redemption of Creation Units.
9. Shares will be listed and traded at negotiated prices on the Stock Exchange and traded in the secondary market. Applicants expect that Stock Exchange specialists (“Specialists”) or market makers (“Market Makers”) will be assigned to Shares. The price of Shares trading on the Stock Exchange will be based on a current bid/offer market. Transactions involving the purchases and sales of Shares on the Stock Exchange will be subject to customary brokerage commissions and charges.
10. Applicants expect that purchasers of Creation Units will include arbitrageurs. Specialists or Market Makers, acting in their unique role to provide a fair and orderly secondary market for Shares, also may purchase Creation Units for use in their own market making activities.
11. Neither the Trust nor any Fund will be marketed or otherwise held out as a “mutual fund.” Instead, each Fund will be marketed as an “actively-managed exchange-traded fund.” Any advertising material where features of obtaining, buying or selling Creation Units are described or where there is reference to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire Shares from a Fund and tender those Shares for redemption to a Fund in Creation Units only.
12. The Funds' Web site, which will be publicly available prior to the public offering of Shares, will include the Prospectus for each Fund and additional quantitative information updated on a daily basis, including, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or mid-point of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its Web site the identities and quantities of the Portfolio Instruments and other assets held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provisions of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Trust to register as an open-end management investment company and redeem Shares in Creation Units only. Applicants state that investors may purchase Shares in Creation Units from each Fund and redeem Creation Units from each Fund. Applicants further state that because the market price of Creation Units will be disciplined by arbitrage opportunities, investors should be able to sell Shares in the secondary market at prices that do not vary materially from their NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through a principal underwriter, except at a current public offering price described in the prospectus. Rule 22c–1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the Prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c–1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c–1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c–1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (c) assure an orderly distribution system of investment company shares by eliminating price competition from Brokers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve the Funds as parties and cannot result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because arbitrage activity should ensure that the difference between the market price of Shares and their NAV remains low.
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants observe that settlement of redemptions of Creation Units of Global Funds is contingent not only on the settlement cycle of the U.S. securities markets but also on the delivery cycles present in foreign markets in which those Funds invest. Applicants have been advised that, under certain circumstances, the delivery cycles for transferring Portfolio Instruments to redeeming investors, coupled with local market holiday schedules, will require a delivery process of up to 14 calendar days. With respect to Future Funds that are Global Funds, applicants seek the same relief from section 22(e) only to the extent that circumstances exist similar to those described in the application. Except as disclosed in the SAI for a Fund, deliveries of redemption proceeds for Global Funds are expected to be made within seven days.
8. Applicants submit that Congress adopted section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants state that allowing redemption payments for Creation Units of a Fund to be made within a maximum of 14 calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants state the SAI will disclose those local holidays (over the period of at least one year following the date of the SAI), if any, that are expected to prevent the delivery of redemption proceeds in seven calendar days and the maximum number of days needed to deliver the proceeds for each affected Global Fund.
9. Applicants request relief from section 22(e) in order to provide payment or satisfaction of redemptions within the maximum number of calendar days required for such payment or satisfaction in the principal local markets where transactions in the Portfolio Instruments of each Global Fund customarily clear and settle, but in all cases no later than 14 calendar days following the tender of a Creation Unit. Applicants are not seeking relief from section 22(e) with respect to Global Funds that do not effect creations or redemptions in-kind.
10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, or any other broker or dealer from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
11. Applicants request relief to permit Investing Funds (as defined below) to acquire Shares in excess of the limits in section 12(d)(l)(A) of the Act and to permit the Funds, their principal underwriters and any Brokers to sell Shares to Investing Funds in excess of the limits in section 12(d)(l)(B) of the Act. Applicants request that these exemptions apply to: (a) any Fund that is currently or subsequently part of the same “group of investment companies” as the Initial Fund within the meaning of section 12(d)(1)(G)(ii) of the Act as well as any principal underwriter for the Funds and any Brokers selling Shares of a Fund to an Investing Fund; and (b) each management investment company or unit investment trust registered under the Act that is not part of the same “group of investment companies” as the Funds and that enters into a FOF Participation Agreement (as defined below) with a Fund (such management investment companies are referred to herein as “Investing Management Companies,” such unit investment trusts are referred to herein as “Investing Trusts,” and Investing Management Companies and Investing Trusts together are referred to herein as “Investing Funds”).
12. Applicants submit that the proposed conditions to the requested relief are designed to address the concerns underlying the limits in section 12(d)(1), which include concerns about undue influence, excessive layering of fees and overly complex structures.
13. Applicants propose a condition to prohibit an Investing Fund or Investing Fund Affiliate
14. Applicants propose other conditions to limit the potential for an Investing Fund and certain affiliates of an Investing Fund (including Underwriting Affiliates) to exercise undue influence over a Fund and certain of its affiliates, including that no Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (“Affiliated Underwriting”). An “Underwriting Affiliate” is a principal underwriter in any underwriting or selling syndicate that is an officer, director, member of an advisory board, Investing Fund Advisor, Investing Fund Sub-Advisor, employee or Sponsor of the Investing Fund, or a person of which any such officer, director, member of an advisory board, Investing Fund Advisor or Investing Fund Sub-Advisor, employee or Sponsor is an affiliated person. An Underwriting Affiliate does not include any person whose relationship to the Fund is covered by section 10(f) of the Act.
15. Applicants propose several conditions to address the concerns regarding layering of fees and expenses. Applicants note that the board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“disinterested directors or trustees”), will be required to find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Fund in which the Investing Management Company may invest. In addition, an Investing Fund Advisor, trustee of an Investing Trust (“Trustee”) or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Investing Fund Advisor, Trustee or Sponsor or an affiliated person of the Investing Fund Advisor, Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, Trustee or Sponsor or its affiliated person by a Fund, in connection with the investment by the Investing Fund in the Fund. Applicants also propose a condition to prevent any sales charges or service fees on shares of an Investing Fund from exceeding the limits applicable to a fund of funds set forth in NASD Conduct Rule 2830.
16. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that a Fund will be prohibited from acquiring securities of any investment company or company relying on sections 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes.
17. To ensure that the Investing Funds understand and comply with the terms and conditions of the requested order, any Investing Fund that intends to invest in a Fund in reliance on the requested order will be required to enter into a participation agreement (“FOF Participation Agreement”) with the Fund. The FOF Participation Agreement will include an acknowledgment from the Investing Fund that it may rely on the order only to invest in the Funds and not in any other investment company.
18. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such a person (“second tier affiliate”), from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” to include any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person and any person directly or indirectly controlling, controlled by, or under common control with, the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company and provides that a control relationship will be presumed where one person owns more than 25% of another person's voting securities. Each Fund may be deemed to be controlled by an Advisor and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment
19. Applicants request an exemption under sections 6(c) and 17(b) of the Act from sections 17(a)(1) and 17(a)(2) of the Act to permit in-kind purchases and redemptions of Creation Units by persons that are affiliated persons or second tier affiliates of the Funds solely by virtue of one or more of the following: (a) Holding 5% or more, or in excess of 25% of the outstanding Shares of one or more Funds; (b) having an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25% of the Shares of one or more Affiliated Funds.
20. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making in-kind purchases or in-kind redemptions of Shares of a Fund in Creation Units. Absent the unusual circumstances discussed in the application, the Deposit Instruments and Redemption Instruments available for a Fund will be the same for all purchases and redeemers, respectively, and will correspond
21. Applicants also submit that the sale of Shares to and redemption of Shares from an Investing Fund meets the standards for relief under sections 17(b) and 6(c) of the Act. Applicants note that any consideration paid for the purchase or redemption of Shares directly from a Fund will be based on the NAV of the Fund in accordance with policies and procedures set forth in the Fund's registration statement.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. As long as a Fund operates in reliance on the requested order, the Shares of the Fund will be listed on a Stock Exchange.
2. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that the Shares are not individually redeemable and that owners of the Shares may acquire those Shares from the Fund and tender those Shares for redemption to the Fund in Creation Units only.
3. The Web site for the Funds, which is and will be publicly accessible at no charge, will contain, on a per Share basis, for each Fund the prior Business Day's NAV and the market closing price or Bid/Ask Price, and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
4. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its Web site the identities and quantities of the Portfolio Instruments and other held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
5. The Advisor or any Subadvisor, directly or indirectly, will not cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Fund) to acquire any Deposit Instrument for the Fund through a transaction in which the Fund could not engage directly.
6. The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of actively-managed exchange-traded funds.
1. The members of the Investing Fund's Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of the Investing Fund's Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Investing Fund's Advisory Group or the Investing Fund's Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund's Shares. This condition does not apply to the Investing Fund's Sub-Advisory Group with respect to a Fund for which the Investing Fund Sub-Advisor or a person controlling, controlled by or under common control with the Investing Fund Sub-Advisor acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Investing Fund or Investing Fund Affiliate will cause any existing or potential investment by the Investing Fund in a Fund to influence the terms of any services or transactions between the Investing Fund or an Investing Fund Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to ensure that the Investing Fund Advisor and any Investing Fund Sub-Advisor are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or an Investing Fund Affiliate from a Fund or a Fund Affiliate in connection with any services or transactions.
4. Once an investment by an Investing Fund in Shares of a Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board of a Fund, including a
5. The Investing Fund Advisor, or Trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b–1 under the Act) received from a Fund by the Investing Fund Advisor, or Trustee or Sponsor, or an affiliated person of the Investing Fund Advisor, or Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, or Trustee, or Sponsor, or its affiliated person by the Fund, in connection with the investment by the Investing Fund in the Fund. Any Investing Fund Sub-Advisor will waive fees otherwise payable to the Investing Fund Sub-Advisor, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Investing Fund Sub-Advisor, or an affiliated person of the Investing Fund Sub-Advisor, other than any advisory fees paid to the Investing Fund Sub-Advisor or its affiliated person by the Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Investing Fund Sub-Advisor. In the event that the Investing Fund Sub-Advisor waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
6. No Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an Affiliated Underwriting.
7. The Board of the Fund, including a majority of the disinterested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by an Investing Fund in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Fund. The Board will consider, among other things: (i) Whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to ensure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders.
8. Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Investing Fund in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
9. Before investing in a Fund in excess of the limits in section 12(d)(1)(A), an Investing Fund will execute a FOF Participation Agreement with the Fund stating that their respective boards of directors or trustees and their investment advisers, or Trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of the investment. At such time, the Investing Fund will also transmit to the Fund a list of the names of each Investing Fund Affiliate and Underwriting Affiliate. The Investing Fund will notify the Fund of any changes to the list as soon as reasonably practicable after a change occurs. The Fund and the Investing Fund will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund relying on this section 12(d)(1) relief will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions as set forth in 5 U.S.C. 552b(c)(2), (6), (8) and (9)(A) and 17 CFR 200.402(a)(2), (6), (8) and (9)(A) permit consideration of the scheduled matters at the Closed Meeting. Certain staff members who had an interest in the matters were present.
Commissioner Walter, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session, and determined that no earlier notice thereof was possible.
The subject matters of the Closed Meeting on June 4, 2012 were a matter related to financial institutions and markets and a personnel matter.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade shares (“Shares”) of the First Trust CBOE VIX Tail Hedge Index Fund under NYSE Arca Equities Rule 5.2(j)(3). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade the Shares of the First Trust CBOE VIX Tail Hedge Index Fund (“Fund”) under NYSE Arca Equities Rule 5.2(j)(3), the Exchange's listing standards for Investment Company Units (“Units”).
The Shares will be offered by First Trust Exchange-Traded Fund (“Trust”), which is organized as a Massachusetts business trust and is registered with the Commission as an open-end management investment company.
According to the Registration Statement, the Fund will seek investment results that correspond generally to the price and yield, before the Fund's fees and expenses, of an equity index called the CBOE S&P VIX Tail Hedge Index (“Index”). The Fund will normally invest at least 90% of its net assets (plus the amount of any borrowings for investment purposes) in common stocks included in the Index. In addition, the Fund will normally invest 0.0% to 1.0% of its net assets in VIX call options, as described below.
The Exchange is submitting this proposed rule change because the Index for the Fund does not meet all of the “generic” listing requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule 5.2(j)(3) applicable to the listing of Units based upon an index of US Component Stocks.
The Index is rules-based and is owned and was developed by Standard & Poor's Financial Services LLC (“S&P” or “Index Provider”).
• VIX futures price less than or equal to 15,
• VIX futures price greater than 15 and less than or equal to 30, 1% Index weight in VIX call options;
• VIX futures price greater than 30 and less than or equal to 50, 0.50% Index weight in VIX call options; and
• VIX futures price above 50, no VIX call options are purchased.
According to the Registration Statement, this dynamic allocation to VIX call options is designed to reduce hedging costs by limiting the number of VIX call options that are purchased during periods of expected low volatility, and also has the effect of taking VIX call option profits when extreme volatility levels are reached. The Index is reconstituted and rebalanced monthly.
The Index Provider will, in most cases, use the quantitative ranking and screening system described herein. However, subjective screening based on fundamental analysis or other factors may be used, if, in the opinion of the Index Provider, certain components should be included or excluded from the Index.
The Fund intends to qualify annually and to elect to be treated as a regulated investment company (“RIC”) under the Internal Revenue Code of 1986, as amended.
The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Act,
The Fund will issue and redeem Shares on a continuous basis, at NAV, only in large specified blocks each consisting of 50,000 Shares (each such block of Shares called a “Creation Unit”). Each group of Creation Units of such specified number of individual Fund Shares is referred to as a “Creation Unit Aggregation.” The Creation Units will be issued and redeemed for securities in which the Fund invests, cash or both securities and cash.
The consideration for purchase of Creation Unit Aggregations of the Fund may consist of (i) cash in lieu of all or a portion of the Deposit Securities, as defined below, and/or (ii) a designated portfolio of equity securities determined by First Trust—the “Deposit Securities”—per each Creation Unit Aggregation (“Fund Securities”) and
BNY, through the National Securities Clearing Corporation (“NSCC”) (as discussed below), will make available on each business day, prior to the opening of business of the New York Stock Exchange (“NYSE”) (currently 9:30 a.m., Eastern Time (“E.T.”)), the list of the names and the required number of shares of each Deposit Security to be included in the current Fund Deposit (based on information at the end of the previous business day) for the Fund.
In addition to the list of names and numbers of securities constituting the current Deposit Securities of a Fund Deposit, BNY, through the NSCC, also will make available, on each business day, the estimated Cash Component, effective through and including the previous business day, per outstanding Creation Unit Aggregation of the Fund.
All orders to create Creation Unit Aggregations must be received by the transfer agent no later than the closing time of the regular trading session on the NYSE (“Closing Time”) (ordinarily 4 p.m., E.T.) in each case on the date such order is placed in order for creation of Creation Unit Aggregations to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form.
Fund Shares may be redeemed only in Creation Unit Aggregations at their NAV next determined after receipt of a redemption request in proper form by the Fund through the transfer agent and only on a business day. The Fund will not redeem Shares in amounts less than Creation Unit Aggregations. With respect to the Fund, the Custodian, through the NSCC, will make available prior to the opening of business on the NYSE (currently 9:30 a.m., E.T.) on each business day, the identity of the Fund Securities that will be applicable to redemption requests received in proper form on that day.
The Fund's Web site (
On a daily basis, the Adviser will disclose for each portfolio security and other financial instrument of the Fund the following information on the Fund's Web site: ticker symbol (if applicable), name of security and financial instrument, number of shares or dollar value of financial instruments held in the portfolio, and percentage weighting of the security and financial instrument in the portfolio. The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities required to be delivered in exchange for the Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via NSCC. The basket represents one Creation Unit of the Fund.
In addition, an Intraday Indicative Value (“IIV”) for the Shares will be widely disseminated at least every 15 seconds during the Core Trading Session (9:30 a.m. to 4 p.m., E.T.) by one or more major market data vendors.
In addition, the Index value will be widely disseminated at least every 15 seconds during the Core Trading Session by one or more major market data vendors such as Bloomberg. Additional information regarding the Index and the underlying components (S&P 500 stock portfolio (with dividends reinvested) and the allocation of VIX call options) will be available at
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and the Trust's Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
The Exchange represents that the continued listing standards under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2) applicable to Units shall apply to the Shares. The Exchange further represents that the VIX options components of the Index, if any, must remain listed and traded on a national securities exchange. In addition, the Exchange represents that the Fund and the Shares will comply with all other requirements applicable to Units including, but not limited to, requirements relating to the dissemination of key information such as the value of the Index, IIV, and NAV, rules governing the trading of equity securities, trading hours, trading halts, surveillance, information barriers, and Information Bulletin to Equity Trading Permit (“ETP”) Holders (each as
The Fund's NAV will be determined as of the close of trading (normally 4 p.m., E.T.) on each day the NYSE is open for business. NAV will be calculated for the Fund by taking the market price of the Fund's total assets, including interest or dividends accrued but not yet collected, less all liabilities, and dividing such amount by the total number of Shares outstanding. The result, rounded to the nearest cent, will be the NAV per Share. All valuations will be subject to review by the Trust's Board of Trustees (“Board”) or its delegate.
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions, and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m., E.T. in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Investment Company Units) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the ISG from other exchanges that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit Aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV will not be calculated or publicly disseminated; (4) how information regarding the IIV is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4 p.m., E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. Moreover, the IIV and the Index value will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. If the IIV or the Index value is not being disseminated as required, the Corporation may halt trading during the day in which the interruption to the dissemination of the applicable IIV or Index value occurs. If the interruption to the dissemination of the applicable IIV or Index value persists past the trading day in which it occurred, the Corporation will halt trading. In addition, if the Exchange becomes aware that the NAV is not being disseminated to all market participants at the same time, it will halt trading in the Shares on the Exchange until such time as the NAV is available to all market participants. On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the securities and other financial instruments in the Fund's portfolio that will form the basis for the Fund's calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares is and will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last-sale information will be available via the CTA high-speed line. The Web site for the Fund will include a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the IIV, Index value, and quotation and last-sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of Units that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the IIV, Index value, and quotation and last-sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes a rule change to dissolve the BOX Committee of the Board of Directors. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to dissolve the BOX Committee of the Board of Directors. After NASDAQ OMX Group, Inc. acquired the Boston Stock Exchange, Inc., the Exchange adopted resolutions (“Resolutions”) to establish a committee of its Board of Directors, referred to as the BOX Committee.
The Exchange believes the Resolutions are rules of an exchange which are concerned solely with the administration of the self-regulatory organization (as defined in Rule 19b–4 under the Act) of the Exchange. Accordingly, to dissolve the Committee, the Exchange is filing this proposal.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange submits this proposed rule change to extend the pilot program in Rule 1059, Accommodation Transactions, to allow cabinet trading to take place below $1 per option contract under specified circumstances (the “pilot program”).
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the pilot program in Commentary .02 of Exchange Rule 1059, Accommodation Transactions, which sets forth specific procedures for engaging in cabinet trades, to allow the Commission adequate time to consider permanently allowing transactions to take place on the Exchange in open outcry at a price of at least $0 but less than $1 per option contract.
On December 30, 2010, the Exchange filed an immediately effective proposal that established the pilot program being
The Exchange believes that allowing a price of at least $0 but less than $1 will better accommodate the closing of options positions in series that are worthless or not actively traded, particularly due to recent market conditions which have resulted in a significant number of series being out-of-the-money. For example, a market participant might have a long position in a call series with a strike price of $100 and the underlying stock might now be trading at $30. In such an instance, there might not otherwise be a market for that person to close-out its position even at the $1 cabinet price (e.g., the series might be quoted no bid).
The Exchange hereby seeks to extend the pilot period for such $1 cabinet trading until December 1, 2012, or upon permanent approval of this pilot program by the Commission, whichever occurs first. The Exchange seeks this extension to allow the procedures to continue without interruptions while the Commission considers permanently allowing transactions to take place on the Exchange in open outcry at a price of at least $0 but less than $1 per option contract.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, as amended.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving operative delay as of June 1, 2012 is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding the investor confusion that could result from a temporary interruption in the pilot program. For this reason, the Commission designates the proposed rule change to be operative on June 1, 2012.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is filing with the Commission a proposal for the NASDAQ Options Market (“NOM” or “Exchange”) to amend Chapter XIV (Index Rules), Sections 7 (Position Limits for Industry and Micro Narrow-Based Index Options) and 11 (Terms of Index Options Contracts) to copy into NOM rules the established rules of another options exchange regarding strike price intervals and position limits for options on the PHLX Oil Service Sector
The text of the proposed rule change is available from NASDAQ's Web site at
In its filing with the Commission, NASDAQ included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASDAQ has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Chapter XIV (Index Rules), Sections 7 and 11 to copy into NOM rules the established rules of another options exchange regarding strike price intervals and position limits for options on OSX, SOX, and HGX. The proposed rule change would allow NOM to list and trade options on these three Specified Indexes.
The rule changes proposed herein in respect of position limits and strike price intervals are based almost verbatim on the established rules of another options market and self regulatory organization (“SRO”), Phlx. The proposed rule changes are based on Phlx Rules 1001A (Position Limits) and 1101A (Terms of Option Contracts).
Options on the narrow-based indexes
The PHLX Oil Service Sector (OSX) is a price-weighted index composed of fifteen companies that provide oil drilling and production services, oil field equipment, support services and geophysical/reservoir services.
The PHLX Semiconductor Sector (SOX) is a modified capitalization-weighted index composed of thirty companies primarily involved in the design, distribution, manufacture, and sale of semiconductors.
The PHLX Housing Sector (HGX) is a modified capitalization-weighted index composed of nineteen companies whose primary lines of business are directly associated with the U.S. housing construction market.
The options on Specified Indexes will be listed on NOM pursuant to the generic Rule 19b–4(e) initial listing standards (“generic standards”) for narrow-based indexes and will be identical to the options on Specified Indexes that are already listed and trading on Phlx. The generic standards are found in Section 6(b) of Chapter XIV and discuss, among other things, weighting methodologies, market capitalization, trading volume, component weighting and concentration, that each component security must be an “NMS stock” as defined in Rule 600 of Regulation NMS of the Act, reporting, and rebalancing.
The Exchange notes that this rule change proposal does not propose or make any changes to the NOM generic listing standards. The proposal does no more than almost verbatim copy the language regarding position limits and strike price intervals that are in use on Phlx for the same options on Specified Indexes.
Position limits on NOM are currently discussed in Section 7 of Chapter XIV. Section 7 states that NOM options traders (known as Options Participants) shall comply with the applicable rules of CBOE with respect to position limits for narrow based index options traded on NOM and also on the CBOE, or with the applicable rules of NOM for industry index options traded on NOM but not traded on the CBOE. Because Specified Index options are not traded on CBOE, the Exchange is, as noted, copying the Phlx position limits for options on the Specified Indexes into its rules.
Thus, the Exchange proposes to copy the Phlx position limits into proposed Section 7(d) of Chapter XIV to state that options on Specified Index position limits will be:
(1) 54,000 contracts for options on the PHLX Oil Service Sector, PHLX Semiconductor Sector, and PHLX Housing Sector, if the Exchange determines, at the time of a review conducted pursuant to this Section 7, that any single underlying stock accounted, on average, for 30% or more of the index value during the 30-day period immediately preceding the review; or
(2) 72,000 contracts for options on the PHLX Oil Service Sector, PHLX Semiconductor Sector, and PHLX Housing Sector, if the Exchange determines, at the time of a review conducted pursuant to this Section 7, that any single underlying stock accounted, on average, for 20% or more of the index value or that any five underlying stocks together accounted, on average, for more than 50% of the index value, but that no single stock in the group accounted, on average, for 30% or more of the index value, during the 30-day period immediately preceding the review; or
(3) 94,500 contracts for options on the PHLX Oil Service Sector, PHLX Semiconductor Sector, and PHLX Housing Sector if the Exchange determines that the conditions specified above which would require the establishment of a lower limit have not occurred.
In addition, the Exchange proposes to add Section 7(e) setting forth the procedure to be followed at the time of a review pursuant to Section 7(d).
The proposed Specified Index option position limits are, as noted, identical to the position limits for the same Specified Index options that have been listed and traded on Phlx for years. The Exchange is doing nothing more than directly transferring the position limits from Phlx Rule 1001A to proposed new Section 7(d) and (e) of Chapter XIV in the NOM rules, without change.
Section 11(c) of Chapter XIV currently states that the interval between strike prices will be no less than $5.00. Section 11(c) also states that for the classes of index options that are listed in the rule the interval between strike prices will be no less than $2.50 if the strike price is less than $200.
Specifically, the Exchange proposes to copy the Phlx $1 strike price interval rule almost verbatim from Phlx Rule 1101A into proposed Section 11(i) of Chapter XIV as follows: The interval between strike prices of series of options on the PHLX Oil Service Sector, PHLX Semiconductor Sector, and PHLX Housing Sector (which are known in the proposed rule as the “$1 Indexes”) will be $1 or greater, subject to the immediately following conditions:
(1) Regarding initial series, the Exchange may list such series at $1 or greater strike price intervals for each $1 Index, and will list at least two strike prices above and two strike prices below the current value of each $1 Index at about the time a series is opened for trading on the Exchange. The Exchange shall list strike prices for each $1 Index that are within 5 points from the closing value of each $1 Index on the preceding day.
(2) Regarding additional Series, such series of the same class of each $1 Index may be opened for trading on the Exchange when the Exchange deems it necessary to maintain an orderly market, to meet customer demand or when each underlying $1 Index moves substantially from the initial exercise price or prices. To the extent that any additional strike prices are listed by the Exchange, such additional strike prices shall be within thirty percent (30%) above or below the closing value of each $1 Index. The Exchange may also open additional strike prices that are more than 30% above or below each current $1 Index value provided that demonstrated customer interest exists for such series, as expressed by institutional, corporate or individual customers or their brokers.
(3) The Exchange shall not list LEAPS on $1 Indexes at intervals less than $2.50.
The Exchange also proposes to add a delisting policy to Section 11(i) of Chapter XIV.
The proposed $1 strike price interval rule is, as discussed, identical to the $1 strike price interval rule that is in effect for the same Specified Index options that have been listed and traded on Phlx for years. The Exchange is doing nothing more than directly transferring the $1 strike price interval rule text language from Phlx Rule 1101A to proposed Section 11 of Chapter XIV of the NOM rules, without change.
The contract specifications for the Specified Index options that will be listed and traded on NOM are identical to the same three narrow-based Specified Index options that are currently listed and traded on Phlx.
The strike price intervals for Specified Index options contracts will be no less than $5.00 generally, no less than $2.50 if the strike price is below $200, and $1 if certain conditions are met.
The Exchange represents that it has an adequate surveillance program in place for options traded on the Specified Indexes and intends to apply those same program procedures that it applies to the Exchange's current equity and index options. Trading of Specified Index options on the Exchange will be subject to FINRA's surveillance procedures for derivative products.
The Exchange represents that it has the necessary systems capacity to support listing and trading Specified Index options.
In terms of technical housekeeping changes, the Exchange proposes to simply add the names of the Specified Indexes to the current lists of indexes in two sections of Chapter XIV. The first such proposed change is to add the names of the Specified Indexes to Supplementary Material to Section 2, which currently has a list of indexes for which NASDAQ is the index reporting authority. And the second proposed change is to add the names of the Specified Indexes to Section 11: OSX and HGX to subsection (a)(4), which currently has a list of European-style indexes; and OSX, SOX, and HGX to subsection (a)(5), which currently has a list of A.M.-settled index options.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes a rule change to delay the implementation date for its Excess Order Fee. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
BX recently submitted a proposed rule change to introduce an Excess Order Fee,
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
BX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, BX believes that the fee will constrain market participants from pursuing certain inefficient and potentially abusive trading strategies. To the extent that this change may be construed as a burden on competition, BX believes that it is appropriate in order to further the purposes of Section 6(b)(5) of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(i) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend NYSE Arca Equities Rule 7.31(h) to add a PL Select Order type. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Arca Equities Rule 7.31(h) to add a PL Select Order type.
Pursuant to NYSE Arca Equities Rule 7.31(h)(4), a Passive Liquidity (“PL”) Order is an order to buy or sell a stated amount of a security at a specified, undisplayed price. The PL Order was initially designed to attract liquidity to the Exchange by permitting market participants to express their trading interest more accurately than was possible with other order types available at the time.
The Exchange believes that it is appropriate to provide Users who enter PL Orders with the flexibility to be able to select what type of contra-side interest that would interact with their PL Order. The Exchange believes that by restricting specified contra-side interest from interacting with PL Orders, Users may be incentivized to enter larger-sized, more aggressively-priced orders. In particular, the Exchange believes that market participants interested in providing liquidity that would offer potential price improvement should be provided the option to select that their “provider” interest would not interact with pure “taker” interest, i.e., interest that will execute immediately with interest at the Exchange without ever resting on the Exchange's order book.
The Exchange also believes that it would be able to attract larger-sized, more aggressively priced PL Orders if the User has the choice not to execute against contra-side orders that are larger sized than the resting PL Order. Because large-sized orders are more likely to trade at multiple price points, such an incoming order would likely sweep up the PL order as it executes through multiple price points. In such scenario, the PL Order would not serve its primary function of providing price improvement, but would instead be an execution among many that would ultimately be at an inferior price. The Exchange believes that if Users entering PL Orders can select not to trade with an incoming order that is larger in size,
To provide such flexibility, the Exchange proposes to add a new order type, the PL Select Order, which would be a subset of a PL Order. As proposed, NYSE Arca Equities Rule 7.31(h)(7) would define the PL Select Order as a PL Order that would not interact with an incoming order that: (i) has an immediate-or-cancel (“IOC”) time in force condition,
As proposed, except for the specified restrictions on trading with certain incoming orders, the PL Select Order would otherwise operate as a PL order and would retain its standing in execution priority among PL Orders. The Exchange notes, however, that for those instances when an incoming order meets one of the PL Select Order restrictions, the PL Select Order would be skipped and can be traded through.
For example, assume that the protected best bid and offer is $19.00–$19.50 and a User enters a PL Select Order to buy 5,000 at $19.25 (B1). A second User enters an order to buy 1,000 at $19.00 (B2). If an incoming ISO sell order at $19.00 for 500 shares arrives (S1), S1 would not trade with B1, and would instead trade with B2 for 500 shares at $19.00. Because B1 is a PL Select Order, and is restricted from trading with an ISO, it would be skipped. If another sell order at $19.00 for 700 shares arrives (S2), and it is not marked IOC or ISO, S2 would execute against B1, 700 shares at $19.25. In this situation, because S2 does not meet any of the restrictions of the PL Select Order, B1, which arrived before B2, would receive the entire execution.
In order to be placed on the Exchange's book initially, the Exchange further proposes that incoming PL Select Orders that are marketable would execute against all available contra-side interest, which potentially could include IOCs, ISOs, or larger-sized interest. After any marketable interest of the arriving PL Select Order executes, any remaining balance of the PL Select Order would be subject to the restrictions and would not trade with any incoming IOCs, ISOs, or larger-sized interest.
The Exchange further proposes to add that upon notice to ETP Holders, the Corporation may suspend the entry of PL Select Orders. If such provision is invoked, Users may continue to submit PL Orders, but would not be able to enter PL Select Orders and all open PL Select Orders on the NYSE Arca trading book would be cancelled back to the User. The Exchange believes that it is appropriate to be able to suspend the entry of PL Select Orders in circumstances where the volume of orders creates an issue with the ability of the Exchange to timely process inbound orders to the Exchange.
Because of the related technology changes that this proposed rule change would require, the Exchange proposes to announce the initial implementation date via Trader Update.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed rule change would help prevent fraudulent and manipulative acts and practices because it would provide the ability for Users to select that a market participant that may be seeking only to probe the availability of hidden interest, and not add liquidity to the market, cannot execute against their passive liquidity. In particular, in today's equities market structure, the type of order flow that generally gets routed to the Exchange, and other registered exchanges, is order flow of the last resort. As evidenced by the increased use of off-Exchange trading venues, whether at dark pools or via internalization agreements at broker-dealers, by the time trading interest reaches an exchange, it is often cast-off trading interest, rather than the primary order flow of a broker-dealer. The Exchange sees this with the high volumes of pinging-type of interest that arrives at the Exchange, and relatively low volumes of trading interest that is intended to be displayed or become passive interest. Such “pinging” interest generally comes from professional traders, rather than from public customers, and is seeking to ferret out hidden liquidity at an exchange, rather than to become passive liquidity.
In seeking to attract more interest that is intended to be displayed interest and therefore promote just and equitable principles of trade, the Exchange proposes to add the PL Select Order type. As discussed in greater detail above, the PL Select Order type would be available to execute against any incoming interest that has the potential to become displayed or passive liquidity at the Exchange. The Exchange believes that the availability of the PL Select Order type could potentially incentivize the routing of interest to the Exchange that is intended to be displayed, which would support the goals of Regulation NMS to encourage the display of limit orders. In particular, Users interested in routing displayable interest to the Exchange would be aware that there is more likely to be hidden interest against which to execute because such hidden interest would not have been “taken” by pinging interest. To the extent there is any disadvantage because a PL Select Order skips an execution, it would be to professional traders who are choosing to send pinging interest, rather than to the investing public.
Likewise, the Exchange believes that skipping executions with larger-sized incoming interest would similarly incentivize Users to route PL Orders to the Exchange because such orders would remain available to provide price improvement and would not be swept up by such larger-sized incoming orders. Because such PL Select Orders would remain available to provide price improvement, it could similarly incentivize Users to route displayable interest to the Exchange because the likelihood of receiving price improvement could increase.
The Exchange further believes that the rule proposal promotes just and equitable principles of trade, and fosters cooperation and coordination with market participants because it provides additional flexibility for Users to specify against which interest their PL Orders would execute. The Exchange notes that Users can continue to enter PL Orders;
The Exchange further believes that providing the Exchange with the ability to suspend the entry of PL Select Orders supports the principle of promoting just and equitable principles of trade and removing impediments to and perfecting the mechanism of a free and open market. Currently, the technology process associated with the proposed PL Select Orders would be to assess each incoming order to determine whether it can interact with resting PL Select Orders. If, in the rare circumstances, the volume of orders received by the Exchange, including of PL Select Orders, and the attendant need to assess each order, results in reduced trading performance and increased latency, the Exchange believes that it is appropriate to suspend the entry of PL Select Orders, which would also result in cancelling any open PL Select Orders, until such time that the potential cause of increased latencies has been resolved.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to accommodate the use of swap agreements under limited circumstances by the ProShares VIX Short-Term Futures ETF and the ProShares VIX Mid-Term Futures ETF, which are listed and traded on the Exchange under NYSE Arca Equities Rule 8.200, Commentary .02. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included
NYSE Arca Equities Rule 8.200, Commentary .02 permits the trading of Trust Issued Receipts (“TIRs”) either by listing or pursuant to unlisted trading privileges (“UTP”).
The Funds seek to provide investment results (before fees and expenses) that match the performance of a benchmark that seeks to offer exposure to market volatility through publicly traded futures markets. The benchmark for ProShares VIX Short-Term Futures ETF is the S&P 500 VIX Short-Term Futures Index, and the benchmark for ProShares VIX Mid-Term Futures ETF is the S&P 500 VIX Mid-Term Futures Index (each, an “Index,” and collectively, “Indexes”).
ProShare Capital Management LLC (“Sponsor”), a Maryland limited liability company, serves as the Sponsor of ProShares Trust II (“Trust”).
According to the Registration Statement, if a Fund is successful in meeting its objective, its value (before fees and expenses) should gain approximately as much on a percentage basis as the level of its corresponding Index when it rises. Conversely, its value (before fees and expenses) should lose approximately as much on a percentage basis as the level of its corresponding Index when it declines. Each Fund acquires exposure through VIX Futures Contracts such that each Fund has exposure intended to approximate the benchmark at the time of the net asset value (“NAV”) calculation.
Under the current proposal, the Funds seek to utilize swap agreements and futures contracts other than VIX Futures Contracts (as further described herein) to pursue their respective investment objectives.
Going forward, in the event position accountability rules are reached with respect to VIX Futures Contracts, the Sponsor, may, in its commercially reasonable judgment, cause the Funds to obtain exposure through swaps referencing the relevant Index or particular VIX Futures Contracts, or invest in other futures contracts or swaps not based on the particular VIX Futures Contracts if such instruments tend to exhibit trading prices or returns that correlate with the Indexes or any VIX Futures Contract and will further the investment objective of the Funds.
The above representations regarding the Funds' prospective use of swaps and other futures contracts are substantially the same as those made with respect to other funds of the Trust that utilize VIX Futures Contracts and that have been approved by the Commission for listing and trading on the Exchange.
In addition, with respect to any Fund's holdings of futures contracts traded on exchanges, not more than 10% of the weight of such futures contracts in the aggregate shall consist of components whose principal trading market is not a member of the Intermarket Surveillance Group (“ISG”) or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
The intra-day futures prices, closing price, and settlement prices of the VIX Futures Contracts or other futures contracts, as applicable, held by the Funds will be available from the CFE, other futures exchanges, automated quotation systems, published or other public sources, or on-line information services. Information relating to cleared swaps will be available from major market data vendors. The value of swaps and futures contracts other than VIX Futures Contracts, as applicable, will be included in: (1) The calculation of the NAV for the Shares, which is disseminated daily; and (2) the Indicative Optimized Portfolio Value (“IOPV”) for the Shares, which is widely disseminated at least every 15 seconds during the Core Trading Session by one or more major market data vendors.
All other representations in the Prior Release remain as stated therein and no other changes are being made.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.200 and Commentary .02 thereto. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via the ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. Under normal market conditions, the Funds invest in VIX Futures Contracts, which are traded on CFE, an ISG member. Going forward, in the event position accountability rules are reached with respect to VIX Futures Contracts, the Sponsor, may, in its commercially reasonable judgment, cause the Funds to obtain exposure through swaps or other futures contracts, as described above. To the extent practicable, the Funds will invest in swaps cleared through the facilities of a centralized clearing house. The Sponsor will attempt to mitigate the Funds' credit risk by transacting only with large, well-capitalized institutions using measures designed to determine the creditworthiness of a counterparty. The intra-day futures prices, closing price, and settlement prices of the VIX Futures Contracts or other futures contracts, as applicable, held by the Funds will also be available from the CFE, other futures exchanges, automated quotation systems, published or other public sources, or on-line information services. Information relating to cleared swaps and futures contracts other than VIX Futures Contracts, as applicable, held by the Funds will be available from major market data vendors. The value of swaps and futures contracts other than VIX Futures Contracts, as applicable, will be included in: (1) The calculation of NAV for the Shares, which is disseminated daily, and (2) the IOPV for the Shares. The portfolio disclosure for the Funds, which is disseminated daily, will include swaps and futures contracts other than VIX Futures Contracts, if any, in addition to VIX Futures Contracts. Quotation and last-sale information for the Shares will be available via the Consolidated Tape Association. Each Fund's total portfolio composition will be disclosed on the Funds' Web site or another relevant Web site. The Exchange represents that the Exchange may halt trading during the day in which the interruption to the dissemination of the IOPV, the value of the Indexes, the VIX, or the value of the underlying VIX Futures Contracts occurs. If the interruption to the dissemination of the IOPV, the value of the Indexes, the VIX, or the value of the underlying VIX Futures Contracts persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. In addition, if the Exchange becomes aware that the NAV with respect to the Shares is not disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants. With respect to any Fund's holdings of futures contracts traded on exchanges, not more than 10% of the weight of such futures contracts in the aggregate shall consist of components whose principal trading market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that a large amount of information is publicly available regarding the Funds and the Shares, thereby promoting market transparency. One or more major market data vendors will disseminate the level of each Index at least every 15 seconds both in real time from 9:30 a.m. to 4:15 p.m. Eastern time and at the close of trading on each
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Funds' holdings, IOPV, and quotation and last-sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b–4(f)(6)(iii),
The Funds may invest in swaps and futures contracts other than VIX Futures Contracts in the event position accountability rules are reached with respect to VIX Futures Contracts, and may also invest in swaps if the market for a specific futures contract experiences certain emergencies or disruptions. NYSE Arca represents that any investments in swaps or futures contracts other than VIX Futures Contracts would be consistent with the Funds' respective investment objectives. To the extent practicable, the Funds will invest in swaps cleared through the facilities of a centralized clearinghouse. In addition, the Sponsor will attempt to mitigate swap counterparty credit risk by transacting only with large, well-capitalized institutions. The value of swaps and futures contracts other than VIX Futures Contracts will be included in the calculation of the NAV and IOPV for the Shares. Each Fund's total portfolio composition, including any swaps and futures contracts other than VIX Futures Contracts held by the Funds, will be disclosed on the Funds' Web site or another relevant Web site. In addition, not more than 10% of the weight of futures contracts traded on exchanges held by each Fund in the aggregate shall consist of components whose principal trading market is not a member of the ISG or is a market with which NYSE Arca does not have a comprehensive surveillance sharing agreement. Further, NYSE Arca represents that the Funds' respective investment objectives are not changing, all other representations made in the Prior Release remain unchanged, and the Funds will continue to comply with initial and continued listing requirements under NYSE Arca Equities Rule 8.200 and Commentary .02 thereto. For the foregoing reasons, the Commission believes that the proposed change does not raise novel or unique regulatory issues that should delay the implementation of the Funds' proposed investments in swaps and futures contracts other than VIX Futures Contracts. Accordingly, the Commission waives the 30-day operative delay requirement because the proposed rule change is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a listing of the exhibit object, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6473). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
In order to adjust for costs and procedures of obtaining benefits for the United States Embassy in Azerbaijan and to protect the interests of the United States, pursuant to the authority vested in the Secretary of State under the Foreign Missions Act, 22 U.S.C. 4301–4316 as amended (“the Act”), which has been delegated to me in accordance with the Department of State's Delegation of Authority No. 214, dated September 20, 1994, I hereby designate the State Oil Company of the Republic of Azerbaijan (SOCAR), an entity engaged in activities in the United States that is substantially owned or effectively controlled by the Government of Azerbaijan and all other entities, including any that are
Pursuant to Section 4305 of the Act, the aforementioned entities are obligated to notify and obtain the approval of the Department of State's Office of Foreign Missions (OFM) before finalizing a proposed acquisition of real property in the United States. Accordingly, all such proposals are subject to disapproval by OFM.
I further determine that such entities shall request approval of their proposed acquisitions of real property by transmitting an official letter to OFM, which at a minimum includes the following information:
1. The exact physical address of the property;
2. A description of the proposed use of the property; and
3. The name and contact information of an individual authorized to discuss the proposed property acquisition with OFM.
Prior to receiving a response from OFM concerning such requests, such entities may not enter into a contract for the purchase of real property, unless the agreement expressly states that its execution is subject to disapproval by the Department of State.
This determination will remain in effect until such time as the Department of State finalizes its acquisition of a new site in Baku, Azerbaijan, on which it can construct a secure, safe, and modern chancery compound.
Department of Transportation.
Notice of Order to Show Cause (Order 2012–6–1); Docket DOT–OST–2011–0169.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding Sun Air Express, LLC d/b/a Sun Air International fit, willing, and able, and awarding it Commuter Air Carrier Authorization.
Persons wishing to file objections should do so no later than June 15, 2012.
Objections and answers to objections should be filed in Docket DOT–OST–2011–0169 and addressed to U.S. Department of Transportation, Docket Operations, (M–30, Room W12–140), 1200 New Jersey Avenue SE., West Building Ground Floor, Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Damon Walker, Air Carrier Fitness Division (X–56, Room W86–487), U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366–9721.
Federal Transit Administration (FTA), DOT.
Notice.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) for the Perris Valley Line project, Riverside County, CA. The purpose of this notice is to announce publicly the environmental decisions by FTA on the subject project and to activate the limitation on any claims that may challenge these final environmental actions.
By this notice, FTA is advising the public of final agency actions subject to Section 139(l) of Title 23, United States Code (U.S.C.). A claim seeking judicial review of the FTA actions announced herein for the listed public transportation project will be barred unless the claim is filed on or before December 5, 2012.
Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353–2577 or Terence Plaskon, Environmental Protection Specialist, Office of Human and Natural Environment, (202) 366–0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency actions by issuing certain approvals for the public transportation project listed below. The actions on this project, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the project to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA administrative record for the project. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information on the project. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed project as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA [42 U.S.C. 4321–4375], Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303], Section 106 of the National Historic Preservation Act [16 U.S.C. 470f], and the Clean Air Act [42 U.S.C. 7401–7671q]. This notice does not, however, alter or extend the limitation period of 180 days for challenges of project decisions subject to previous notices published in the
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Maritime Administration's (MARAD's) intention to request extension of approval for three years of a currently approved information collection.
Comments should be submitted on or before August 7, 2012.
Dennis Brennan, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202–366–1029; or email:
49 CFR 1.66.
By Order of the Maritime Administrator.
Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, DOT.
Notice; public meeting.
The Pipeline and Hazardous Materials Safety Administration (PHMSA) and the National Association of Pipeline Safety Representatives (NAPSR) are jointly sponsoring a public meeting on Implementing Integrity Management of Gas Distribution Pipelines. The meeting will be held on June 27, 2012, in Fort Worth, Texas. At the meeting, PHMSA/NAPSR will discuss observations from initial inspections of operators' implementation of integrity management requirements for gas distribution pipelines and current regulatory topics affecting distribution pipeline operators. The meeting will also include panel and breakout session discussions involving gas distribution pipeline industry representatives on topics relating to their experiences implementing the distribution integrity management regulation.
The public meeting will be held on Wednesday, June 27, 2012, from 8 a.m. to 5 p.m. CDT. Name badge pickup and onsite registration will be available starting at 7:30 a.m. Refer to the meeting Web site for a more detailed agenda and times at
The meeting is open to all. There is no cost to attend. The meeting will be held at the OMNI Hotel, 1300 Houston Street, Fort Worth, TX 76102–6556. Hotel reservations under the “U.S. DOT DIMP” room block for the nights of June 26–27, 2012, can be made at 1–800–843–6664. A daily rate of $139.00 is available. Information about the meeting room will be posted at the hotel on the day of the public meeting.
Chris Mclaren, Office of Pipeline Safety at 281–216–4455 or email at
A final rule establishing requirements for assuring the continued integrity of gas distribution pipelines (DIMP) was published on December 4, 2009, (74 FR 63906). The rule required that operators of gas distribution pipelines develop and implement integrity management plans for their pipeline systems by August 2, 2011. PHMSA and states have conducted a number of inspections of gas distribution pipeline operator integrity management programs. Many more inspections will follow. This public meeting is intended to allow PHMSA, NAPSR, and industry representatives to share observations resulting from these initial inspections.
The public meeting is designed to enhance pipeline safety through improved integrity management of natural gas distribution pipeline systems and will consist of presentations and panel discussions provided by a variety of stakeholders. Panel participants will represent industry, PHMSA, and NAPSR. Panels will present information on PHMSA and NAPSR's expectations of implemented distribution integrity management programs (DIMP) and observations from DIMP Inspections conducted by PHMSA and NAPSR. PHMSA and NAPSR will promote compliance with regulations by providing an overview of the rule, including expectations of regulatory definitions (such as identification of threats, methodologies for segmentation of assets for evaluation of risk, risk ranking, measures designed to reduce risk, and measuring and monitoring performance) and discussing methodologies that industry is employing to meet the requirements of the rule. Inspection findings from DIMP inspections conducted by PHMSA and state programs and issue areas and areas of concern will be discussed.
Participants of the public meeting will benefit from (1) hearing their peers explain methods of implementation for certain provisions of the rule and associated questions experienced during program development and implementation; (2) listening to PHMSA, NAPSR, and industry experience on implementing the specific elements of the rule; (3) discussing rule compliance concerns; developing a clearer understanding of the DIMP rule provisions, and (4) participating in the development of additional guidance if deemed necessary through stakeholder feedback.
Interested persons may obtain more information on DIMP by accessing the DIMP Web site through the PHMSA Pipeline Safety Community page at
• Discuss Implementation of the DIMP Regulation and Regulatory Developments affecting Distribution Operators.
• Regulators' (NAPSR and PHMSA) Perspective on Implementation of the DIMP Regulation.
• Breakout Sessions to discuss various topics regarding the implementation of distribution IM Programs and meeting the requirements of the DIMP rule.
• Presentations from representatives of the breakout sessions, NAPSR, and industry.
Surface Transportation Board, DOT.
Notice.
The Board is publishing, and providing the public an opportunity to comment on, the 2011 weighted average state tax rates for each Class I railroad, as calculated by the Association of American Railroads (AAR), for use in the Revenue Shortfall Allocation Method (RSAM).
Comments are due by July 9, 2012. If any comment opposing AAR's calculation is filed, AAR's reply will be due by July 30, 2012. If no comments are filed by the due date, AAR's calculation of the 2011 weighted average state tax rates will be automatically adopted by the Board, effective July 10, 2012.
Comments may be submitted either via the Board's e-filing format or in traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site at
Jonathon Binet, (202) 245–0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877–8339.
The RSAM figure is one of three benchmarks that together are used to determine the reasonableness of a challenged rate under the Board's
In
Any party wishing to comment on AAR's calculation of the 2011 weighted average state tax rates should file a comment by July 9, 2012.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
By the Board.
The Surface Transportation Board (STB) is publishing the annual inflation-adjusted index factors for 2011. These factors are used by the railroads to adjust their gross annual operating revenues for classification purposes. This indexing methodology insures that railroads are classified based on real business expansion and not from the affects of inflation. Classification is important because it determines the extent to which individual railroads must comply with STB reporting requirements.
The STB's annual inflation-adjusted factors are based on the annual average Railroad's Freight Price Index which is developed by the Bureau of Labor Statistics (BLS). The STB's deflator factor is used to deflate revenues for comparison with established revenue thresholds.
The base year for railroads is 1991. The inflation index factors are presented as follows:
Paul
By the Board, William F. Huneke, Director, Office of Economics.
Wisconsin Central Ltd. (WCL), Wisconsin Central Transportation Corporation (WCTC), and Elgin, Joliet and Eastern Railway Company (EJ&E) (collectively, applicants) have jointly filed a verified notice of exemption under 49 CFR 1180.2(d)(3) for an intra-corporate family transaction.
WCL, a rail carrier, is a wholly owned subsidiary of WCTC, a noncarrier, which, in turn, is a direct subsidiary of Grand Trunk Corporation (GTC). GTC, a noncarrier holding company for the U.S. rail carrier subsidiaries of Canadian National Railway Company (CNR), is a direct subsidiary of CNR. In
Applicants state that the rail lines of WCL and EJ&E connect at Leithton, Ill., north of Chicago, Ill., and WCL has existing overhead trackage rights over
Applicants state that WCL will be merged into WCL's immediate parent, WCTC, with WCTC as the surviving entity. WCTC then immediately will be renamed Wisconsin Central Ltd. The newly renamed WCL (formerly WCTC) will continue to control SSMB and WCCL as WCTC has done. Pursuant to an agreement and plan of merger by applicants (consented to by GTC), EJ&E will then be merged with and into WCL, with WCL as the surviving corporation. According to applicants, the consolidated entity will continue all existing operations of WCL and EJ&E, but with a unified workforce, enhanced efficiencies, and crew management flexibility in the Chicago terminal.
Applicants state that the merger of WCL into WCTC, and the concurrent name change of WCTC to WCL, are expected to occur on September 30, 2012. Applicants state that, subject to negotiation or (if necessary) arbitration of labor implementing agreements, the consummation of the proposed merger of EJ&E with and into WCL would occur on December 31, 2012. They indicate that, in no event, would the transaction occur sooner than June 22, 2012, the effective date of the exemption.
The purpose of the intracorporate transaction is to simplify CNR's corporate structure by consolidating two separate, connecting railroads into a single entity, to reduce the administrative burden associated with tax matters, financial reporting, accounting, IT systems, and corporate filings that are required to support the separate existence of EJ&E, and to address crew management inefficiencies and train service efficiencies in and around the Chicago terminal area, where both carriers involved in the proposed merger currently operate.
This is a transaction within a corporate family of the type specifically exempted from prior review and approval under 49 CFR 1180.2(d)(3). The parties state that the transaction will not result in adverse changes in service levels, significant operational changes, or any change in the competitive balance with carriers outside the corporate family.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. As a condition to the use of this exemption, any employees adversely affected by this transaction will be protected by the conditions set forth in
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35630, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606–2832.
Board decisions and notices are available on our Web site at
By the Board.
Notice and request for comments.
The U.S. Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the Community Development Financial Institutions (CDFI) Fund, Department of the Treasury, is soliciting comments concerning reporting and record retention requirements for the Capital Magnet Fund (CMF).
Written comments should be received on or before August 7, 2012 to be assured of consideration.
Direct all comments to Capital Magnet Fund Manager, Community Development Financial Institutions Fund, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, by email to
Additional information about CMF may be obtained from the CMF page of the CDFI Fund's Web site at
Requests for Comments: Comments submitted in response to this notice as well as the prior notice of September 17, 2010, 75 FR 57107, will be summarized and/or included in the request for Office of Management and Budget approval. All comments will become a matter of public record and will be published on the CDFI Fund Web site at
Pub. L. 110–289.
Financial Management Service, Fiscal Service, Treasury.
Notice and Request for comments.
The Financial Management Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection. By this notice, the Financial Management Service solicits comments concerning form FMS–111, “Electronic Transfer Account (ETA) Financial Agency Agreement.”
Written comments should be received on or before August 7, 2012.
Direct all written comments to Financial Management Service, 3700 East West Highway, Records and Information Management Branch, Room 135, Hyattsville, Maryland 20782.
Requests for additional information or copies of the form(s) and instructions should be directed to Walt Henderson, Director, EFT Strategy Division, 401 14th Street SW., Washington, DC 20227, (202) 874–6624
Pursuant to the Paperwork Reduction Act of 1995, (44 U.S.C. 3506(c)(2)(A)), the Financial Management Service solicits comments on the collection of information described below:
U.S.-China Economic and Security Review Commission.
Notice of open public hearing—June 14, 2012, Washington, DC.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
Any member of the public seeking further information concerning the hearing should contact Gavin Williams, 444 North Capitol Street NW., Suite 602, Washington, DC 20001; phone: 202–624–1492, or via email at
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Pub. L. 106–398), as amended by Division P of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108–7), as amended by Public Law 109–108 (November 22, 2005).
The Department of Veterans Affairs (VA) gives notice under Public Law 92–463 (Federal Advisory Committee Act) that the Advisory Committee on Disability Compensation will meet on June 25–26, 2012, at the St. Regis Hotel, 923 16th and K Streets NW., Washington, DC. The sessions will begin at 8:30 a.m. and end at 4 p.m. each day. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities. The Committee is to assemble and review relevant information relating to the nature and character of disabilities arising during service in the Armed Forces, provide an ongoing assessment of the effectiveness of the rating schedule, and give advice on the most appropriate means of responding to the needs of Veterans relating to disability compensation.
The Committee will receive briefings on issues related to compensation for Veterans with service-connected disabilities and other VA benefits programs. Time will be allocated for receiving public comments in the afternoon. Public comments will be limited to three minutes each. Individuals wishing to make oral statements before the Committee will be accommodated on a first-come, first-served basis. Individuals who speak are invited to submit 1–2 page summaries of their comments at the time of the meeting for inclusion in the official meeting record.
The public may submit written statements for the Committee's review to Robert Watkins, Designated Federal Officer, Department of Veterans Affairs, Veterans Benefits Administration, Compensation Service, Regulation Staff (211D), 810 Vermont Avenue NW., Washington, DC 20420; or by email at
By Direction of the Secretary.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action on revisions to its heavy-duty diesel regulations that will enable emergency vehicles, such as dedicated ambulances and fire trucks, to perform mission-critical life-saving work without risking that abnormal conditions of the emission control system could lead to decreased engine power, speed or torque. The revisions will allow manufacturers to request and EPA to approve modifications to emission control systems on emergency vehicles so they do not interfere with the vehicles' missions. This action is not expected to result in any significant changes in regulatory burdens or costs.
This rule is effective on August 7, 2012 without further notice, unless EPA receives adverse comment. If we receive relevant adverse comment on distinct elements of this rule by July 27, 2012, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2011–1032, by one of the following methods:
•
•
•
•
•
Lauren Steele, Environmental Protection Agency, Office of Transportation and Air Quality, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, Michigan 48105; telephone number: 734–214–4788; fax number: 734–214–4816; email address: steele.lauren (@epa.gov).
EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This is also to expedite the regulatory process to allow engine and vehicle modifications to occur as soon as possible. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment on a distinct provision of this rulemaking, we will publish a timely withdrawal in the
EPA is publishing this direct final rule to expedite the deployment of solutions that will best ensure the readiness of the nation's emergency vehicles. We request that commenters identify in your comments any portions of the action with which you agree and support as written, in addition to any comments regarding suggestions for improvement or provisions with which you disagree. In the case of a comment that is otherwise unclear whether it is adverse, EPA would interpret relevant comments calling for more flexibility or less restrictions for emergency vehicles as supportive of the direct final action. In this way, the EPA will be able to adopt those elements of this action that are fully supported and most needed today, while considering and addressing any adverse comments received on the proposed rule, in the course of developing the final rule.
This action may affect you if you produce or import new heavy-duty or nonroad diesel engines that are intended for use in vehicles that serve the emergency response industry, including all types of dedicated and purpose-built fire trucks and ambulances. The following table gives some examples of entities that may be affected by this action. Because these are only examples, you should carefully examine the existing and revised regulations in 40 CFR parts 85, 86 and 1039. If you have questions regarding how or whether these rules apply to you, you may call the person listed in the
EPA is adopting amendments to its heavy-duty diesel engine programs that will specifically allow engine manufacturers to request to deploy specific emission controls or settings for new and in-use engines that are sold for use only in emergency vehicles. EPA is adopting these revisions to enable fire trucks and ambulances with heavy-duty diesel engines to perform mission-critical life- and property-saving work without risk of losing power, speed or torque due to abnormal conditions of the emission control systems.
EPA's current diesel engine requirements have spurred application of emission controls systems such as diesel particulate filters (commonly called soot filters or DPF's) and other after-treatment systems on most new diesel vehicles, including emergency vehicles. Some control system designs and implementation strategies are more effective in other segments of the fleet than in emergency vehicles, especially given some emergency vehicles' extreme duty cycles. By this action, EPA intends to help our nation's emergency vehicles perform their missions; to better ensure public safety and welfare and the protection of lives and property.
Section 202(a)(1) of the Clean Air Act (CAA or the Act) directs EPA to establish standards regulating the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines that, in the Administrator's judgment, causes or contributes to air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards apply for the useful life of the vehicles or engines. Section 202(a)(3) requires that EPA set standards applicable to emissions of hydrocarbons, carbon monoxide, NO
Section 202(a)(4)(A) of the Act requires the Administrator to consider risks to public health, welfare or safety in determining whether an emission control device, system or element of design shall be used in a new motor vehicle or new motor vehicle engine. Under section 202(a)(4)(B), the Administrator shall consider available methods for reducing risk to public health, welfare or safety associated with use of such device, system or element of design, as well as the availability of other devices, systems or elements of design which may be used to conform to requirements prescribed by (this subchapter) without causing or contributing to such unreasonable risk.
Section 206(a) of the Act requires EPA to test, or require to be tested in such manner as it deems appropriate, motor vehicles or motor vehicle engines submitted by a manufacturer to determine whether such vehicle or engine conforms to the regulations promulgated under section 202. Section 206(d) provides that EPA shall by regulation establish methods and procedures for making tests under section 206.
Section 213 of the Act gives EPA the authority to establish emissions standards for nonroad engines and vehicles (42 U.S.C. 7547). Sections 213(a)(3) and (a)(4) authorize the Administrator to set standards and require EPA to give appropriate consideration to cost, lead time, noise, energy, and safety factors associated with the application of technology. Section 213(a)(4) authorizes the Administrator to establish standards to control emissions of pollutants (other than those covered by section 213(a)(3)) which “may reasonably be anticipated to endanger public health and welfare.” Section 213(d) requires the standards under section 213 to be subject to sections 206–209 of the Act and to be
On January 18, 2001, EPA published a rule promulgating more stringent standards for NO
The heavy-duty highway rule adopted in 2001 also included a PM emissions standard for new heavy-duty diesel engines of 0.01 g/bhp-hr, effective for engines beginning with MY 2007. Due to the flexible nature of the phase-in schedule described above, manufacturers have had the opportunity to produce engines that met the PM standard while emitting higher levels of NO
EPA adopted similar technology-forcing standards for nonroad diesel engines on June 29, 2004.
Typically, the engines powering our nation's emergency vehicles belong to the same certified engine families as engines that are installed in similarly sized vehicles sold for other public and private uses.
Because of the above-described manufacturing practices and the narrow CAA authority for any exemptions, EPA has historically regulated engines for emergency vehicles, including ambulances as well as police vehicles and fire-fighting apparatus, in the same manner as other engines.
In the public comments received on the proposed heavy-duty highway rule, EPA received some comments about DPF technologies and regeneration cycles on heavy-duty trucks, including one comment that expressed concerns that the systems may not be failsafe.
More recently EPA has received letters from fire apparatus manufacturers and ambulance companies requesting relief from power or speed inducements related to low levels of DEF for SCR systems on emergency vehicles.
Recently, beginning in October 2011, EPA received a series of comment letters from fire chiefs and other interested stakeholders, requesting regulatory action to relieve emergency vehicles from the burden of complying with the 2007 PM standards.
There have been some examples of EPA providing limited exemptions for other types of emergency-use engines and vessels. Further descriptions of current and proposed limited exemptions are provided in the Notice of Proposed Rulemaking published elsewhere in today's
EPA is amending its regulations to facilitate engine manufacturers' design and implementation of reliable and robust emission control systems with regeneration strategies and other features that do not interfere with the mission of emergency vehicles. Through the comments and letters we have received, as well as our own outreach and data-gathering efforts, we have learned that some emission control systems on fire trucks and ambulances today, in particular, certain applications using diesel particulate filters, are requiring an unexpected amount of operator interventions, and there are currently a nontrivial number of emergency vehicles that are electronically programmed to cut power or speed—even while responding to an emergency—when certain operational parameters are exceeded in relation to the emission control system. As we understand it, the experiences of operators are mixed, with some not reporting any problems and some reporting problems that raise public safety and welfare concerns.
EPA's standards are performance-based, and reflect the greatest degree of emission reduction achievable, according to CAA sections 202(a)(3) and 213(a)(3). Our on-highway and nonroad PM standards do not specify the type of diesel particulate filter for manufacturers to use, nor do they even mandate the use of such a filter. Our analysis of the feasibility of the 2007 on-highway PM standard is presented in Chapter III of the final Regulatory Impact Analysis (RIA) for that rule.
Based on the information available to us, we have concluded that there is an indirect risk to public safety and welfare associated with some examples of emission control systems when they are deployed on emergency vehicles that experience extreme duty cycles. This indirect risk is related to the readiness of emergency vehicles and the risk that they may not be able to respond during emergencies with the full power, torque, or speed that the engine is designed to provide. While this risk is not inherent to the requirement to reduce emissions or to the use of diesel particulate filters on emergency vehicles, EPA believes it is appropriate to ensure that emergency vehicles can perform their emergency missions without the chance of such consequences.
EPA's current rules already provide the opportunity for manufacturers to address many issues through applications for certification of new engines and new vehicles. There is also currently a mechanism for manufacturers to deploy field modifications to the in-use fleet, including those that are substantially similar to approved upgrades for new vehicles, as well as those that apply only to vehicles that are no longer in production. As manufacturers become aware of the need for upgrades or enhancements, this process occurs within the new and in-use fleet with various degrees of application. While that process is occurring today, EPA views this issue as serious enough that we would be remiss if we did not act to ensure that our regulations clearly offer the needed flexibilities for emergency vehicles.
To explain more fully the issues that we are addressing with this action, and hence why we are taking this action, we are providing here some background information on diesel particulate filters and the process of DPF regeneration. DPF's are exhaust after-treatment devices that significantly reduce emissions from diesel-fueled vehicles and equipment. DPF's physically trap PM and remove it from the exhaust stream. Figure III–1 depicts a schematic of a wall-flow monolith style filter, with the black arrows indicating exhaust gas laden with particles, and the gray arrows indicating filtered exhaust gas. This style of filter is the most common in today's heavy-duty diesel engines, and has very high rates of filtration, in excess of 95 percent.
To be successful, these devices generally must be able to accomplish two things: Collect PM and clean away accumulated PM. There are two main types of PM that can accumulate: combustible and non-combustible, and two very different types of cleaning methods: regeneration and ash cleaning. Regeneration occurs relatively frequently, and is designed to complete the combustion (oxidation) of the trapped combustible PM components, releasing them to the exhaust as gas-phase compounds (mostly H
Regeneration, however, is a type of routine DPF cleaning that must occur regularly, and for which EPA does not specify a minimum interval in its regulations, in contrast to the ash cleaning process. At its very essence, regeneration involves burning off the accumulated soot. Since this burning can involve extra heat and/or oxygen or oxygen-containing compounds, this must be done carefully and safely to avoid uncontrolled burns. The discussion below in Section III.B.(1)(b) describes the three types of routine DPF regeneration: Passive regeneration, automatic active regeneration, and manual (parked) active regeneration. Additional discussion is provided in the accompanying Notice of Proposed Rulemaking published elsewhere in today's
When the style of filter installed on a diesel vehicle is the wall-flow type that is predominant in the market today, it physically traps so much of the PM that the particles accumulate on the inside of the filter and if not burned off, this PM can over time block the passages through the filtering media, making it more restrictive to exhaust flow. This is commonly referred to as “trap plugging.” Some other styles of filter, such as flow-through DPF's, are less prone to plugging, but do not generally reduce the PM emission rate sufficiently to meet today's stringent PM standard. Any time something gets in the way of free flowing air through an engine, it creates what we call “exhaust backpressure.” Even a clean, new DPF generates a small amount of exhaust backpressure due to the porous walls through which all of the exhaust flows.
Engines can tolerate a certain range of exhaust backpressure. When an increase in this backpressure, or resistance, is detected, engines can compensate to a point. An increase in exhaust backpressure from a DPF trapping more and more PM represents increased work demanded from the engine to force the exhaust gas through the increasingly
If a DPF is not regenerated and it becomes plugged, there is a risk of two types of failure. The degree of this risk and which consequence may be experienced will depend on the engine and emission control system design. One consequence is that the lack of air flowing through an engine will cause an engine to shut down because it can no longer compensate for the extra work being demanded of it. The other is a risk of catastrophic DPF failure when excessive amounts of trapped PM begin to oxidize at high temperatures (i.e., DPF regeneration temperatures above 1,000 °C) leading to a “runaway” combustion of the PM within the DPF. This can cause temperatures in the filter media to increase beyond its physical tolerance, possibly creating high thermal stresses where the DPF materials could crack or melt. This is an unsafe condition, presenting physical danger to occupants as well as to objects and persons near the vehicle. Further, catastrophic failure can allow significant amounts of the diesel PM to pass through the DPF without being captured. That is, the DPF is destroyed and PM emission control is lost. For all these reasons, most manufacturers generally design their emission control systems to prevent uncontrolled shutdown or runaway DPF regeneration by programming the engine's electronic control module (ECM) to limit maximum engine speed, torque and/or power when excessive backpressures are detected. This mode of engine operation at reduced performance may allow a vehicle to “limp home” to receive service. In extreme cases the ECM may command the engine to shut down to prevent a catastrophic failure.
There are three types of routine DPF regeneration. Passive regeneration refers to methods that rely strictly on the temperatures and constituents normally available in the vehicle's exhaust to oxidize PM from a DPF in a given vehicle application. Passive regeneration is an automatic process that occurs without the intervention of an engine's on-board diagnostic and control systems, and often without any operator notice or knowledge. Passive regeneration is often a continuous process, because of which, it is sometimes referred to as continuous regeneration. In a vehicle whose normal operation does not generate temperatures needed for passive DPF regeneration, the system needs a little help to clean itself. This process is called active regeneration, and supplemental heat inputs to the exhaust are provided to initiate soot oxidation. There are two types of active regeneration: Those that may occur automatically either while the vehicle is in motion, while idling, or while powering an auxiliary device such as a pump or ladder (power take-off (PTO) mode)), and those that must be driver-initiated and occur only while the vehicle is stationary and out-of-service.
Vehicles with automatic active regeneration systems require operators to be alert to dashboard lamps and indicators. Written instructions are provided to operators to explain what each lamp means (such as high temperatures or need for regeneration) and what action is called for (such as driving at highway speeds or initiating a manual active regeneration). Because EPA emissions standards are performance based; and therefore, do not dictate any required emission control system technologies or configurations, each manufacturer has the discretion to program the timing and sequence of lamps as needed to inform drivers of the condition of the emission control system. As noted above, it is not uncommon in today's heavy-duty fleet for an engine's ECM to limit its maximum speed, torque or power when a plugging DPF is detected. These engine and emission control system protection measures can alert drivers to the need to change driving conditions to facilitate automatic active regeneration or to make plans to allow for a manual active regeneration.
A manual active regeneration allows the engine's ECM to increase engine speed and exhaust temperature to a greater extent than what is typically allowed during an automatic active regeneration. Because the ECM takes full control of an engine during a manual active regeneration, the vehicle must remain parked and not used for other purposes, such as pumping water in PTO mode. Some manual active regenerations may require towing the vehicle to a special service center, and may occur while the DPF is on the vehicle, or offline with the DPF removed from the vehicle. In such cases, if a spare DPF is not available, the vehicle could be out of service overnight. If a driver disregards such warnings, the risk of uncontrolled engine shutdown or a catastrophic DPF failure may increase. EPA encourages the design of robust systems calling for minimal driver interventions, while providing drivers with clear and early indicators before any interventions are needed. EPA also encourages accurate and thorough operator training to ensure that the correct remedial action is taken at the earliest available time.
Actively regenerating DPF systems typically require sufficient air flow, temperature and soot accumulation before an automatic active regeneration will be requested by the engine's ECM. As mentioned above, this may occur either while the vehicle is in motion or parked, if pre-set engine operating conditions are met (such as speed and temperature). When the engine's ECM signals the initiation of an automatic active regeneration and the extra heat is generated, an ideal DPF system accomplishes this as a transparent process, with no effects perceivable by the driver.
A variety of manufacturer approaches can be taken to produce the supplemental heat needed for active regeneration. Diesel engines of MY 2007 or newer often incorporate one or more of the following approaches:
• On-board electrical heaters upstream of the filter.
• Air-intake throttling in one or more of the engine cylinders. When necessary, this device would limit the amount of air entering the engine, raising the exhaust temperature and facilitating regeneration.
• Exhaust brake activation. When necessary, this device would limit the amount of exhaust exiting the engine, raising the exhaust temperature and facilitating regeneration.
• Engine speed increases. This approach is sometimes used in combination with the other approaches to deliver more heat to the filter to facilitate regeneration.
• Post top-dead-center (TDC) fuel injection. Injecting small amounts of fuel in the cylinders of a diesel engine after pistons have reached TDC introduces a small amount of unburned fuel in the engine's exhaust gases. This unburned fuel can then be oxidized over an oxidation catalyst upstream of the filter or oxidized over a catalyzed particulate filter to combust accumulated particulate matter.
• Post injection of diesel fuel in the exhaust upstream of an oxidation catalyst and/or catalyzed particulate filter. This method serves to generate heat used to combust accumulated particulates by oxidizing fuel across a catalyst present on the filter or on an oxidation catalyst upstream of the filter.
• On-board fuel burners upstream of the filter.
These are presented here merely as examples, and are by no means a complete list of the strategies available to manufacturers when designing engines that use automatic active DPF regeneration, though not all may be applicable to all engines. A common approach that gets a lot of consumer attention is the use of fuel burners or fuel injection strategies. This approach is often called “dosing.” Vehicle owners may notice an increase in fuel consumption when driving a vehicle that relies heavily on fuel dosing for its automatic active regenerations. In this case, when an engine's ECM gives the signal, the doser injects a metered amount of diesel fuel into the exhaust flow (or cylinders), which reacts with the DPF catalyst to raise the temperature to a point that enables regeneration. EPA does not have information about which manufacturers employ this technique or the number or types of vehicles with engines that use fuel dosing as part of the active regeneration strategy. Estimates of the additional fuel use by a vehicle whose DPF regeneration system employs fuel dosing are described in the Notice of Proposed Rulemaking published elsewhere in today's
At the time of promulgation of the heavy-duty highway rule, EPA and the engine manufacturers expected the 2007-compliant engine emission control systems would be integrated with advanced engine controls to ensure DPF regeneration under all vehicle operating conditions and environments. While this is widely true today, the experience of the rule implementation thus far indicates there are still some exceptions.
Although EPA is aware of a relatively small number of emergency vehicles that are experiencing problems with DPF regeneration, of those that are having problems, most of the problems can be related to the vehicle's duty cycle, the ambient conditions, and/or the engine's combustion characteristics. A vehicle's duty cycle means how it is driven, including its speeds, loads, and distances, as well as time out of service and time spent idling. A vehicle's duty cycle can vary by the demographic of the service area, including whether the vehicle responds to emergencies in a rural or urban community, and whether it drives over flat or hilly terrain. Because DPF regeneration requires heat and oxygen (basic ingredients for combustion), the success of DPF regeneration strategies can also be influenced by ambient conditions such as extreme cold winter temperatures and whether the vehicle operates near sea level or at a high elevation. The engine combustion and exhaust characteristics can influence the success of a DPF regeneration strategy since parameters such as engine-out NO
Both the engine's duty cycle and the overall control strategy of the engine's emission control system play a large role in the success of integrating a DPF with an engine to control PM emissions. In this section we provide additional discussion of how engine combustion characteristics and vehicle duty cycle can lead to DPF regeneration problems on emergency vehicles. In Section III.D, below, we discuss our regulatory action to address these issues. While our approach specifically targets engine combustion characteristics and emission control system design, we encourage emergency vehicle owners to inquire with their dealers and manufacturers regarding suitable vehicle and engine options that are appropriate for their duty cycle as well as their demographic and geographic location.
Engine combustion characteristics can be designed to enable continuous passive regeneration or to rely heavily on automatic active regeneration. As mentioned above, regeneration is a combustion process, burning off the accumulated PM or soot. The PM is created because the initial combustion process in the engine was imperfect. To completely convert all fuel to CO
In an engine with a DPF system, combustion settings, or calibrations that enable continuous passive regeneration, tend to be those with higher engine-out NO
Thus it is important to note that this NO
As noted above, the duty cycle of a vehicle is one of the factors that
A detailed discussion of the duty cycles of emergency vehicles is provided in the Notice of Proposed Rulemaking published elsewhere in Today's
When trucks with an engine-driven PTO are working in a stationary PTO mode, some engines achieve the conditions to enable an automatic active regeneration during this time. While this is normally designed to be a transparent process, in practice some effects of this type of regeneration have been noticed by operators. EPA has received information from fire chiefs indicating that there have been instances where engine ECM's took control from the operator during water pumping operations. When an automatic active regeneration is initiated during a water pumping operation, for example, an ECM may be programmed to alter throttle position or engine speed to achieve the conditions needed to complete an automatic active regeneration. Depending on the design of the water pumping system's pressure regulation, this may in turn affect the water pressure in the fire hoses. EPA has not heard of this occurring on a widespread basis, and has reason to believe that affected engine and truck manufacturers have identified and corrected this issue on some vehicles. EPA's current regulations already allow manufacturers to develop and request EPA approval for certification of engines with emission control strategies where the process of undergoing automatic active regeneration would not interfere with safely pumping fire suppressant.
While not addressed directly in this action, there are technologies that could be implemented to decrease the amount of time emergency vehicles spend with their main engines operating at light loads and at idle. These technologies include electronically programmed automatic engine start/stop systems and hybrids. Automatic start/stop systems automatically stop and start an engine depending upon whether or not it is needed to supply power to the vehicle. This technology is already being implemented on other heavy-duty vehicles to decrease unnecessary engine idling. Hybrid drivetrains also decrease engine idling with an integrated alternate power source such as a battery. We are currently seeing an increase in the use of hybrid technologies in heavy-duty diesel vocational vehicles. Garbage trucks, utility company trucks, and other work trucks are using hybrid technology to power on-board hydraulic systems and cab heating and cooling systems. In conventional vehicles these systems are powered by a main engine typically operating at light load or at idle. Because automatic start/stop and hybrid technologies improve fuel economy and decrease greenhouse gas emissions, we believe that they will be used in more and more vehicles in the future. We believe there is potential for these technologies to be integrated into future designs of emergency vehicles to decrease their operation at light loads and at idle. Such technologies would not only improve fuel economy and decrease greenhouse gas emissions from emergency vehicles, they would also help to prevent their diesel particulate filters from becoming plugged due to excessive operation at light loads and at idle. While we are not taking any specific action at this time related to decreasing the amount of time emergency vehicles operate at light load or at idle, in the accompanying NPRM, we request comment on the potential for application of alternate power sources and idle reduction technologies on emergency vehicles.
Selective Catalytic Reduction (SCR) is an exhaust after-treatment system used to control NO
Most engine manufacturers chose to comply with the 2010 NO
DEF is injected into the exhaust upstream of the SCR catalyst where it forms ammonia and carbon dioxide. The ammonia then reacts with NO and NO
Because an SCR system is only effective when DEF is injected into the exhaust, we consider refilling a vehicle's DEF tank to be a critical emission-related engine maintenance requirement. We are proposing to take action to establish this in our regulations, as described in Section V of the Notice of Proposed Rulemaking published elsewhere in today's
While decreasing vehicle performance can be an effective inducement strategy, we believe it may not be appropriate in all situations for emergency vehicles because of their special need to be ready at any moment for the purpose of protecting public safety and welfare by saving human lives that may be in immediate danger. We recognized this during the initial implementation of our 2010 NO
Improving the components of diesel particulate filters is the current subject of research and development activities within the automotive and air pollution control industries. Aspects that are being improved include filter ash storage capacity, filter pressure drop, substrate durability, catalyst activity, as well as other physical and chemical properties that can optimize the device for heavy-duty vehicle applications.
Engine manufacturers have taken a systems approach, optimizing the engine with its after-treatment system to realize the best overall performance possible. Manufacturers can manage the functioning of the emission control system by adjusting parameters such as the thermal profile of the after-treatment system, the exhaust gas chemical composition, the rate of consumption of DEF, the rate of particle deposition, and the conditions under which DPF regenerations (soot cleaning) may occur.
In a broad and general sense, the trend is that DPF's are slowly becoming even more robust without EPA intervention. Future DPF's will need fewer total regenerations during the useful life of the engine and control system, more passive and fewer active regenerations will occur, and manual regenerations will become rarer.
In addition, vehicle operators and fleet managers will continue to become more experienced with this new generation of sophisticated electronically-controlled vehicles. Manufacturers across the country are providing training on actions fleet managers can take to decrease problems with DPF regenerations. These actions include:
The Technology & Maintenance Council (TMC) of the American Trucking Associations conducted a survey in late 2011 to compare user experiences between EPA 2010, EPA 2007, and EPA 2004 vintage trucks.
Vehicles with 2010-compliant heavy-duty diesel engines tend to place different demands on their DPF systems than pre-2010 vehicles. With the addition of NO
Even though such trends would indicate that instances of emergency vehicles experiencing difficulty managing regeneration of DPF's would decrease, in the absence of this EPA action, some vehicles would be likely to continue to experience some problems.
EPA has learned that some engine manufacturers have disabled these engine protection measures on some emergency vehicles. In these cases the
Without a clear action from EPA to provide the regulatory flexibility needed for swift deployment of robust remedies throughout the emergency vehicle fleet, implementation of best practices could be inconsistent, insufficient, or even impossible due to regulatory constraints. Some vehicles would continue to experience frequent plugging of DPF's, frequent forced filter regenerations, and reduced engine power, speed or torque that diminish the ability of first responders to save lives and property. There would also remain a heightened risk that an emergency vehicle could be taken out of service when it is most needed.
As described above in Section III.C, many DPF-equipped vehicles include engine controls and driver alerts that lead to decreases in maximum speed, torque, or power when DPF backpressure exceeds normal levels, as protective measures for either the engine or the DPF, or as inducements for the operator to immediately conduct DPF regeneration. Similarly, vehicles equipped with selective catalytic reduction (SCR) systems for NO
In our current regulations, engine manufacturers may request as part of an application for new engine or vehicle certification, and EPA may approve, Auxiliary Emission Control Devices, if they are not determined to be “defeat devices.” Auxiliary Emission Control Devices, or AECD's, are any design element of an engine's emission control system that senses temperature, vehicle speed, engine RPM, transmission gear, manifold vacuum, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission control system.
A defeat device is a type of AECD that reduces the effectiveness of vehicle emission controls in situations when such reduction in effectiveness is not approved or permitted by EPA. Defeat devices are not permitted by the Clean Air Act or EPA.
Approvals of AECD's are made by EPA on a case-by-case basis. In applications for engine certification, manufacturers must include a detailed description of each AECD to be installed in or on any vehicle (or engine) covered by the application, as well as a detailed justification of each AECD that results in a reduction in effectiveness of the emission control system. According to 40 CFR 86.094–21(b)(1)(i)(B), EPA may disapprove a request for an AECD based on consideration of currently available technology. Use of an unauthorized or disapproved AECD can be considered a violation of section 203 of the Act.
In this action, EPA is proposing to revise the definition of
In this action, EPA is proposing to define an
EPA is also adopting an associated engine labeling requirement so that engines with approved emergency vehicle AECD's will be clearly identified and distinguished from other similar engines.
As mentioned above in Section III.B, some engine manufacturers currently specify that when an engine is sold for installation in an emergency vehicle,
However, without the optional flexibilities provided by EPA in this action, manufacturers could be prevented from implementing truly failsafe solutions for all affected vehicles. For example, while current custom solutions may allow an emergency vehicle to continue pumping water or transporting a person to safety, its DPF would continue to accumulate particles and the risk of catastrophic failure would increase.
In this action, EPA is adopting amendments so that manufacturers can apply for (and EPA can approve) AECD's that may be justified in terms of preventing the occurrence of abnormal conditions of the emission control systems for emergency vehicles or in terms of preventing the engines from losing speed, torque, or power due to such abnormal conditions. In this context, EPA would consider abnormal conditions to be parameters outside normal ranges for proper operation, such as excessive exhaust backpressure from high soot loading on a DPF or insufficient DEF for use with an SCR system.
EPA is encouraging manufacturers to apply for AECD's that are tailored for engines on emergency vehicles, considering the duty cycle information presented in the accompanying NPRM, along with any other information needed to design failsafe emission control systems for new emergency vehicles. EPA is also encouraging manufacturers to design field modifications to address these issues on in-use emergency vehicles, including those whose engines are no longer in production. Further discussion of field modifications is provided below in Section III.E(2).
To achieve these goals, EPA understands that increased flexibility will be needed because EPA's strict NO
It is current practice that most modern diesel engine ECM's are set to initiate an automatic active regeneration only above a designated DPF soot load, and those vehicles equipped with manual regeneration switches are set to not allow the option of initiating manual active regeneration until an even greater soot load is detected. The reason why manufacturers do this is related to certification of engine families and vehicle test groups. If manufacturers can limit the frequency of regenerations by design, then they can be assured that average emissions will remain below the certified average emission level. Excess regenerations could lead to higher average emissions, since some exhaust emissions increase during regeneration. Particularly for engines not equipped with SCR systems, NO
EPA believes that emergency vehicle AECD's that enable more frequent automatic active and manual active DPF regenerations, associated with a wider range of soot loads could improve the reliability of DPF systems without significantly compromising emissions reductions or durability. As explained below Section III.E(4), EPA does not expect this provision to affect other aspects of certification. For emergency vehicles with approved AECD's that involve changes in the frequency of regeneration, the resulting increase in NO
As mentioned above, in-cylinder combustion chemistry dictates a NO
It is EPA's objective that all of our clean diesel emissions standards be implemented with reliable technologies
Today's action applies to new and in-use fire trucks and ambulances, new and in-use airport fire apparatus and wildland fire apparatus, and heavy-duty diesel engines on these emergency vehicles and equipment.
Of those new diesel engines covered by EPA's current heavy-duty diesel standards, only those installed in vehicles or equipment meeting the definition of emergency vehicle or emergency equipment will be eligible to obtain an approved AECD of the type discussed above in Section III.D. Where a vehicle is chassis-certified and either sold as an incomplete vehicle to a truck body manufacturer or built and sold as a complete vehicle, only those sold and built as emergency vehicles will be eligible to obtain an approved AECD of the type discussed above.
To address in-use engines and vehicles, EPA plans to allow engine and vehicle manufacturers to submit requests for EPA approval of Emergency Vehicle Field Modifications (EVFMs) for on-highway emergency vehicles and Emergency Equipment Field Modifications (EEFMs) for nonroad emergency equipment. EVFMs and EEFMs will be modifications to existing hardware and software to be installed on in-use vehicles or equipment to prevent loss of speed, torque, or power due to abnormal conditions of emission control systems, or to prevent such abnormal conditions from occurring, during vehicle or equipment operation related to emergency response. EPA will use an approval process similar to the process that is currently utilized to submit modifications to current applications for certification, also known as “running changes.” The information submitted by a manufacturer to EPA as part of this request and approval process will be similar to the information submitted for emergency vehicle or equipment AECD's.
It is important to emphasize that this action will allow only those approved modifications to be deployed by manufacturers and their authorized dealers. Modifications made by end users are not generally approvable; rather the tampering prohibitions would generally apply to such modifications.
EPA has identified three types of field modifications that will be permitted for emergency vehicles and emergency equipment under the final regulations, based on the extent to which the modification is being incorporated into new production vehicles and equipment. The three types are:
□ Type A: Any field modification that is a change to a certified vehicle (i.e., a vehicle, engine or equipment covered by a certificate of conformity) that is identical in all respects to a running change that is approved for incorporation in new vehicles by the manufacturer. Where the running change was approved by EPA for implementation only in conjunction with certain other running changes, the field modification may be considered to be a Type A field modification only if implemented under the same constraints.
□ Type B: Any field modification that is not identical in all respects to, but provides for essentially the same purpose as, a running change that is being incorporated in new vehicles by the manufacturer or that would have been incorporated if the vehicle were still in production. A Type B field modification is used when it is not practical to incorporate the exact running change in vehicles that have left the assembly line, or when the vehicles are no longer in production.
□ Type C: Any field modification that is made selectively only to vehicles which have left the assembly line and which would not have been incorporated on the assembly line. For example, this would apply when making a field modification to a vehicle that is no longer in production where there are no similar vehicles in production.
The amount of justification needed for the field modification differs depending on which type of modification is being requested.
Because the engines and vehicles eligible for the AECD's described in this proposal belong to broadly certified engine families and test groups, when they are sold for installation in an emergency vehicle and equipped with one or more approved emergency vehicle AECD's, they must be labeled as such, to distinguish them from other certified engines. EPA is proposing adding a labeling requirement to 40 CFR part 86 subpart A, such that engines with one or more approved AECD's for emergency vehicle applications must be labeled with the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY VEHICLES ONLY.” EPA is also proposing adding a labeling requirement to 40 CFR part 86 subpart S, such that vehicles with one or more approved AECD's for emergency vehicles, include the following statement on the emission control information label: “THIS VEHICLE HAS A LIMITED EXEMPTION AS AN EMERGENCY VEHICLE.” EPA is also adding a labeling requirement to 40 CFR part 1039, such that nonroad engines with one or more approved AECD's for emergency equipment include a label with the following statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY EQUIPMENT ONLY.”
EPA requests comment on whether these labeling requirements are satisfactory to ensure that engines and vehicles operating with approved emergency AECD's are permanently distinguished from similar certified engines. EPA also requests comment on whether a similar label should be required for an in-use emergency vehicle or equipment where a field modification is deployed that prevents the engine from losing speed, torque, or power due to any occurrences of abnormal conditions of the emission control system, or prevents such abnormal conditions from occurring.
Today's rule will not alter the tampering prohibition in 40 CFR 1068.101(b)(1). This provision describes a general prohibition against anyone from removing or rendering inoperative an engine's emission controls before or after entering into service, where an exception is provided in 1068.101(b)(1)(ii) for engine modifications needed to respond to a temporary emergency, provided that the engine is restored to proper functioning as soon as possible after the emergency has passed. EPA encourages manufacturers to design their emergency vehicle AECD's to be engaged only to the extent necessary to prevent the engine from losing speed, torque, or power due to abnormal conditions of the emission control system, or to prevent such abnormal conditions from occurring during operation related to emergency response. EPA recognizes that there may be cases where an AECD may need to be engaged at times other than while actively responding to an emergency, in order to assure that loss of speed, torque or power does not occur during operation related to emergency response. EPA also recognizes that some AECD's may involve electronic approaches where the engine's functions would be modulated based on exhaust backpressure or other parameters that are not correlated with any emergency situation. EPA may even, in extreme cases, such as at high altitude or with certain older MY engines allow engagement of AECD's at all times, if they are justified as necessary to prevent engine from losing speed, torque, or power during operation related to emergency response.
We are also encouraging manufacturers to design their emission control systems to discourage tampering. According to EPA's tampering prohibition, a vehicle operator who abuses or alters an approved AECD may be guilty of tampering. For example, if an AECD includes enabling an operator to initiate more frequent manual active regenerations, engine manufacturers may choose to prevent the abuse of this function by means such as a daily or weekly cap on the number of manual active regenerations, or a minimum soot loading for the function to engage. As another example, if an emergency vehicle alerts a driver to an abnormal condition of its emission control system by illuminating dash lamps, alarms or other warnings that do not limit vehicle performance, it is the operator's responsibility to take prompt action to remedy the problem.
Manufacturers of highway and nonroad engines will be required to describe any emergency vehicle AECD in an application for certification. In this action, we are not proposing any revisions to the information needed to review and approve AECD's. It is common practice for manufacturers, in describing AECD's, to identify engine parameters such as those that would operate differently to preserve adequate engine performance during an emergency, including information about how the engine would respond under different in-use operating conditions under the various sets of conditions that would otherwise cause the engine to operate at less than full performance levels. Other than the requirement for a manufacturer to describe the emergency vehicle AECD in its application for certification, we do not expect this provision to be relevant for other aspects of certification. For example, emissions certification testing may be conducted with any approved AECD's for emergency vehicle or equipment deactivated. Additionally, manufacturers do not need to consider emergency vehicle AECD's when developing infrequent regeneration adjustment factors (IRAFs) or when developing deterioration factors (DFs). Thus, manufacturers can include emergency and non-emergency engines and vehicles in the same engine families and test groups. Manufacturers may also apply for emergency vehicle AECD's for new, existing, and/or formerly approved emissions certificates.
EPA expects the economic effects of this rule to be small, and to potentially have benefits that are a natural result of easing constraints.
Due to the optional and voluntary nature of this action, there are no direct regulatory compliance costs to engine manufacturers. To the extent manufacturers elect to develop and deploy upgrades to engines for emergency vehicles, they may voluntarily incur some degree of costs associated with the following:
• Design and testing to determine effectiveness of potential AECDs
• Education & outreach to intermediate vehicle manufacturers and end users
• Deployment of AECDs onto new and in-use emergency vehicles
• Labeling costs
EPA expects any fixed costs will be small, and any variable costs will apply only to the engines sold for installation in emergency vehicles or emergency equipment, which comprise less than one percent of the heavy-duty on-road fleet, and an even smaller fraction of the nonroad fleet. As per standard practice, manufacturers would be free to set a fair market price for any approved AECD they offer, to offset the costs incurred in its development.
Depending on the type of AECD or field modification that a manufacturer voluntarily elects to deploy, some operational costs could increase and some could decrease.
When an emergency vehicle is experiencing frequent plugging of its DPF, this increases maintenance costs for owners and warranty costs for manufacturers. These costs are expected to decrease with this action. Furthermore, EPA believes that the potential for reduced warranty costs may help to offset the cost to produce and deploy any optional AECD's. Similarly, EPA believes the potential for reduced maintenance and operational costs may offset the cost to owners for obtaining requested AECD's.
Where DPF systems employ fuel dosing to enable active automatic regenerations, it is uncertain whether liberalizing the parameters for initiating regenerations would affect fuel consumption, and whether fuel consumption would increase with an increased number of regenerations during a given operating period. To the extent regenerations are enabled with other means besides fuel, or demand for regenerations is reduced through recalibration, then any potential increase in fuel use from dosing would be mitigated. Further discussion of operational costs including costs of fuel dosing is provided in the Notice of Proposed Rulemaking published elsewhere in Today's
Because this rule eases constraints on the development of robust DPF systems, the economic impacts can only improve with this action. It is presumed that the benefits to society of enabling first responders to act quickly when needed outweigh the costs to society of the temporary increase in emissions from this small segment of vehicles.
We expect any environmental impacts from this action will be small. By promulgating these amendments, it is expected that the emissions from this segment of the heavy-duty fleet will not change significantly.
EPA estimates that on-road emergency vehicles comprise less than one percent of the national heavy-duty fleet. According to the International Council on Clean Transportation (ICCT), less than one percent of all new heavy-duty truck registrations in 2003 to 2007 were for emergency vehicles (includes class 8 fire trucks plus other class 3–8 emergency vehicles).
Due to the optional and voluntary nature of this action, it is difficult to estimate its overall emissions impact accurately. The amendments offer many options to manufacturers, and the emissions impacts will depend on which options and strategies are employed, and for how many vehicles. Further discussions of potential NO
EPA's clean diesel standards are already providing substantial benefits to public health and welfare and the environment through significant reductions in emissions of NO
This 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 Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose any new information collection burden. The regulatory relief for emergency vehicles is voluntary and optional, and the revisions for engine and vehicle maintenance merely codify existing guidelines. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business primarily engaged in shipbuilding and repairing as defined by NAICS code 336611 with 1,000 or fewer employees (based on Small Business Administration size standards); (2) a small business that is primarily engaged in freight or passenger transportation on the Great Lakes as defined by NAICS codes 483113 and 483114 with 500 or fewer employees (based on Small Business Administration size standards); (3) a small business primarily engaged in commercial and industrial machinery and equipment repair and maintenance as defined by NAICS code 811310 with annual receipts less than $7 million (based on Small Business Administration size standards); (4) 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 (5) 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 today's rule on small entities, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.
This rule provides regulatory relief related to emergency vehicles. As such, we anticipate no costs and therefore no regulatory burden associated with this rule. We have concluded that this rule will not increase regulatory burden for affected small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This direct final rule applies to manufacturers of heavy-duty diesel engines and not to state or local governments. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This direct final rule will be implemented at the Federal level and may result in indirect costs on affected engine manufacturers depending on the extent to which they take advantage of the flexibilities offered. Tribal governments will be affected only to the extent they purchase and use vehicles with regulated engines. Thus, Executive Order 13175 does not apply to this 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 EPA has 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.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5–501 of the Order has the potential to influence the regulation. This direct final rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks, and because it is not economically significant under Executive Order 12866.
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(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this direct final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This action is not expected to have any adverse environmental impacts.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Confidential business information, Imports, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Research, Warranties.
Administrative practice and procedure, Confidential business information, Motor vehicle pollution, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Labeling, Penalties, Reporting and recordkeeping requirements, Warranties.
For the reasons set forth in the preamble, the Environmental Protection Agency amends title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401–7671q.
This section describes how you may implement design changes for an emergency vehicle that has already been placed into service to ensure that the vehicle will perform properly in emergency situations. This applies for any light-duty vehicle, light-duty truck, or heavy-duty vehicle meeting the definition of
(a) You must notify us in writing of your intent to install or distribute an emergency vehicle field modification (EVFM). In some cases you may install or distribute an EVFM only with our advance approval, as specified in this section.
(b) Include in your notification a full description of the EVFM and any documentation to support your determination that the EVFM is necessary to prevent the vehicle from losing speed, torque, or power due to abnormal conditions of its emission control system, or to prevent such abnormal conditions from occurring during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, or running out of diesel exhaust fluid for engines that rely on urea-based selective catalytic reduction. Your determination must be based on an engineering evaluation or testing or both.
(c) You may need our advance approval for your EVFM, as follows:
(1) Where the proposed EVFM is identical to an AECD we approved under this part for an engine family currently in production, no approval of the proposed EVFM is necessary.
(2) Where the proposed EVFM is for an engine family currently in production but the applicable demonstration is based on an AECD we approved under this part for an engine family no longer in production, you must describe to us how your proposed EVFM differs from the approved AECD. Unless we say otherwise, your proposed EVFM is deemed approved 30 days after you notify us.
(3) If we have not approved an EVFM comparable to the one you are proposing, you must get our approval before installing or distributing it. In this case, we may request additional information to support your determination under paragraph (b) of this section, as follows:
(i) If we request additional information and you do not provide it within 30 days after we ask, we may deem that you have retracted your request for our approval; however, we may extend this deadline for submitting the additional information.
(ii) We will deny your request if we determine that the EVFM is not necessary to prevent the vehicle from losing speed, torque, or power due abnormal conditions of the emission control system, or to prevent such abnormal conditions from occurring, during operation related to emergency response.
(iii) Unless we say otherwise, your proposed EVFM is deemed approved 30 days after we acknowledge that you have provided us with all the additional information we have specified.
(4) If your proposed EVFM is deemed to be approved under paragraph (c)(2) or (3) of this section and we find later that your EVFM in fact does not meet the requirements of this section, we may require you to no longer install or distribute it.
42 U.S.C. 7401–7671q.
The additions and revision read as follows:
(1) Such conditions are substantially included in the applicable Federal emission test procedure for heavy-duty vehicles and heavy-duty engines described in subpart N of this part;
(2) The need for the AECD is justified in terms of protecting the vehicle against damage or accident;
(3) The AECD does not go beyond the requirements of engine starting; or
(4) The AECD applies only for engines that will be installed in
(i) Emission results from heavy-duty engines equipped with exhaust aftertreatment may need to be adjusted to account for regeneration events. This provision only applies for engines equipped with emission controls that are regenerated on an infrequent basis. For the purpose of this paragraph (i), the term “regeneration” means an event during which emission levels change while the aftertreatment performance is being restored by design. Examples of regenerations are increasing exhaust gas temperature to remove sulfur from an adsorber or increasing exhaust gas temperature to oxidize PM in a trap. For the purpose of this paragraph (i), the term “infrequent” means having an expected frequency of less than once per transient test cycle. Calculation and use of adjustment factors are described in paragraphs (i)(1) through (5) of this section. If your engine family includes engines with one or more AECDs for emergency vehicle applications approved under paragraph (4) of the definition of defeat device, do not consider additional regenerations resulting from those AECDs when
(a) * * *
(3) * * *
(iii) * * *
(O) For engines with one or more approved AECDs for emergency vehicle applications under paragraph (4) of the definition of “defeat device” in § 86.004–2, the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY VEHICLES ONLY.”
(g) You may disable any AECDs that have been approved solely for emergency vehicle applications under paragraph (4) of the definition of defeat device. The emission standards do not apply when any of these AECDs are active.
(i) You may disable any AECDs that have been approved solely for emergency vehicle applications under paragraph (4) of the definition of “defeat device” in § 86.004–2. The emission standards do not apply when any of these AECDs are active.
(h)
(1) A driver's compartment.
(2) A patient compartment to accommodate an emergency medical services provider and one patient located on the primary cot so positioned that the primary patient can be given intensive life-support during transit.
(3) Equipment and supplies for emergency care at the scene as well as during transport.
(4) Safety, comfort, and avoidance of aggravation of the patient's injury or illness.
(5) Two-way radio communication.
(6) Audible and visual traffic warning devices.
(1) Such conditions are substantially included in the Federal emission test procedure;
(2) The need for the AECD is justified in terms of protecting the vehicle against damage or accident;
(3) The AECD does not go beyond the requirements of engine starting; or
(4) The AECD applies only for
(h) Vehicles powered by model year 2007 through 2013 diesel-fueled engines must include permanent readily visible labels on the dashboard (or instrument panel) and near all fuel inlets that state “Use Ultra Low Sulfur Diesel Fuel Only” or “Ultra Low Sulfur Diesel Fuel Only”.
(i) For vehicles with one or more approved AECDs for emergency vehicles under paragraph (4) of the definition of “defeat device” in § 86.1803, include the following statement on the emission control information label: “THIS VEHICLE HAS A LIMITED EXEMPTION AS AN EMERGENCY VEHICLE.”
(c) Manufacturers of vehicles equipped with periodically regenerating aftertreatment devices must propose a procedure for testing and certifying such vehicles, including SFTP testing, for the review and approval of the Administrator. The manufacturer must submit its proposal before it begins any service accumulation or emission testing. The manufacturer must provide with its submittal sufficient documentation and data for the Administrator to fully evaluate the operation of the aftertreatment devices and the proposed certification and testing procedure.
42 U.S.C. 7401–7671q.
(g) * * *
(4) The auxiliary emission control device applies only for engines that will be installed in emergency equipment and the need is justified in terms of preventing the equipment from losing speed or power due to abnormal conditions of the emission control system, or in terms of preventing such abnormal conditions from occurring, during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, and running out of diesel exhaust fluid for engines that rely on urea-based selective catalytic reduction. The emission standards do not apply when any AECDs approved under this paragraph (g)(4) are active.
(5) The auxiliary emission control device operates only in emergency situations as defined in § 1039.665 and meets all of the requirements of that section, and you meet all of the requirements of that section.
(c) * * *
(15) For engines with one or more approved auxiliary emission control devices for emergency equipment applications under § 1039.115(g)(4), the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY EQUIPMENT ONLY.”
(g) You may disable any AECDs that have been approved solely for emergency equipment applications under § 1039.115(g)(4).
This section describes how to adjust emission results from engines using aftertreatment technology with infrequent regeneration events. For this section, “regeneration” means an intended event during which emission levels change while the system restores aftertreatment performance. For example, exhaust gas temperatures may increase temporarily to remove sulfur from adsorbers or to oxidize accumulated particulate matter in a trap. For this section, “infrequent” refers to regeneration events that are expected to occur on average less than once over the applicable transient duty cycle or ramped-modal cycle, or on average less than once per typical mode in a discrete-mode test. If your engine family includes engines with one or more AECDs for emergency equipment applications approved under § 1039.115(g)(4), do not consider additional regenerations resulting from those AECDs when calculating emission factors or frequencies under this section.
This section describes how you may implement design changes for emergency equipment that has already been placed into service to ensure that the equipment will perform properly in emergency situations.
(a) You must notify us in writing of your intent to install or distribute an emergency equipment field modification (EEFM). In some cases you may install or distribute an EEFM only with our advance approval, as specified in this section.
(b) Include in your notification a full description of the EEFM and any documentation to support your determination that the EEFM is necessary to prevent the equipment from losing speed, torque, or power due to abnormal conditions of its emission control system, or to prevent such abnormal conditions from occurring during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, or running out of diesel exhaust fluid (DEF) for engines that rely on urea-based selective catalytic reduction. Your determination must be based on an engineering evaluation or testing or both.
(c) You may need our advance approval for your EEFM, as follows:
(1) Where the proposed EEFM is identical to an AECD we approved under this part for an engine family currently in production, no approval of the proposed EEFM is necessary.
(2) Where the proposed EEFM is for an engine family currently in production but the applicable demonstration is based on an AECD we approved under this part for an engine family no longer in production, you must describe to us how your proposed EEFM differs from the approved AECD. Unless we say otherwise, your proposed EEFM is deemed approved 30 days after you notify us.
(3) If we have not approved an EEFM comparable to the one you are proposing, you must get our approval before installing or distributing it. In this case, we may request additional information to support your determination under paragraph (b) of this section, as follows:
(i) If we request additional information and you do not provide it within 30 days after we ask, we may deem that you have retracted your request for our approval; however, we may extend this deadline for submitting the additional information.
(ii) We will deny your request if we determine that the EEFM is not necessary to prevent the equipment from losing speed, torque, or power due abnormal conditions of the emission control system, or to prevent such abnormal conditions from occurring, during operation related to emergency response.
(iii) Unless we say otherwise, your proposed EEFM is deemed approved 30 days after we acknowledge that you have provided us with all the additional information we have specified.
(4) If your proposed EEFM is deemed to be approved under paragraph (c)(2) or (3) of this section and we find later that your EEFM in fact does not meet the requirements of this section, we may require you to no longer install or distribute it.
(1) Specialized vehicles used to perform aircraft rescue and fire-fighting functions at airports, with particular emphasis on saving lives and reducing injuries coincident with aircraft fires following impact or aircraft ground fires.
(2) Wildland fire apparatus, which includes any apparatus equipped with a slip-on fire-fighting module, designed primarily to support wildland fire suppression operations.
Environmental Protection Agency (EPA).
Notice of proposed rulemaking.
This proposal consists of three parts. First, EPA is proposing revisions to its heavy-duty diesel regulations that would enable emergency vehicles, such as dedicated ambulances and fire trucks, to perform their mission-critical life-saving work without risking that abnormal conditions of the emission control system could lead to decreased engine power, speed or torque. The revisions would allow manufacturers to request and EPA to approve modifications to emission control systems on emergency vehicles so they do not interfere with the vehicles' missions. Second, EPA is proposing to revise the emission-related maintenance and scheduled maintenance intervals for all motor vehicles and nonroad compression-ignition engines to specify minimum maintenance intervals for replenishment of consumable chemical reductant in connection with the use of selective catalytic reduction technologies. Third, EPA is proposing to offer short-term relief for nonroad engines from performance inducements related to the emission control system, for general purpose nonroad vehicles while operating in temporary emergency service. These actions are not expected to result in any significant changes in regulatory burdens or costs.
Comments on all aspects of this proposal must be received on or before July 27, 2012. See the
Public Hearings: EPA will hold a public hearing on Wednesday, June 27, 2012 in Ann Arbor, Michigan. The hearing will start at 10 a.m. local time and will continue until everyone has had a chance to speak. For more information about the public hearing, see “How Do I Participate in the Public Hearing?” under the
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2011–1032, by one of the following methods:
•
•
•
•
•
Lauren Steele, Environmental Protection Agency, Office of Transportation and Air Quality, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, Michigan 48105; telephone number: 734–214–4788; fax number: 734–214–4816; email address:
This proposed action would affect you if you produce or import new heavy-duty or nonroad diesel engines that are intended for use in vehicles that serve the emergency response industry, including all types of dedicated and purpose-built fire trucks and ambulances. You may also be affected by this action if you manufacture diesel engines that make use of a consumable chemical reductant to comply with emissions standards for nitrogen oxides. You may also be affected by this action if you produce or import diesel engines for nonroad applications. The following table gives some examples of entities that may be affected by this proposed action. Because these are only examples, you should carefully examine the proposed and existing regulations in 40 CFR parts 85, 86 and 1039. If you have questions regarding how or whether these rules apply to you, you may call the person listed in the
EPA is proposing amendments to its heavy-duty diesel engine programs that would specifically allow engine manufacturers to request to deploy specific emission controls or settings for new and in-use engines that are sold for use only in emergency vehicles. EPA is proposing these revisions to enable fire trucks and ambulances with heavy-duty diesel engines to perform mission-critical life- and property-saving work without risk of losing power, speed or torque due to abnormal conditions of the emission control systems.
EPA's current diesel engine requirements have spurred application of emission controls systems such as diesel particulate filters (commonly called soot filters or DPF's) and other after-treatment systems on most new diesel vehicles, including emergency vehicles. Some control system designs and implementation strategies are more effective in other segments of the fleet than in emergency vehicles, especially given some emergency vehicles' extreme duty cycles. By this action, EPA intends to help our nation's emergency vehicles perform their missions; to better ensure public safety and welfare and the protection of lives and property.
EPA is proposing to amend its regulations for diesel engines to add provisions specifying emission-related maintenance and scheduled maintenance intervals for replenishment of consumable chemical reductant in connection with engines and vehicles that use selective catalytic reduction (SCR) technologies. This would apply to the use of SCR with model year (MY) 2011 and later light-duty vehicles and nonroad compression ignition (NRCI) engines, and MY 2012 and later heavy-duty vehicles and engines.
Most manufacturers of diesel engines and vehicles subject to our current standards regulating oxides of nitrogen (NO
Given that SCR use is now common in the transportation sector and replenishment of DEF is necessary for SCR to be effective, it is appropriate to add DEF replenishment to the list of scheduled emission-related maintenance published in the Code of Federal Regulations (CFR), rather than rely on a case-by-case approval as is specified in the current regulations. This action would improve the clarity and transparency of EPA's requirements for SCR systems.
EPA is proposing short-term relief from emission control system performance inducements for any nonroad compression ignition engine powered vehicles operating in temporary emergency service. This relief would address concerns about unusual circumstances where performance inducements could hinder equipment performance in emergency conditions, which are defined as conditions in which the functioning (or malfunctioning) of emission controls poses a significant risk to human life. We are proposing provisions for a short-term emergency bypass of the normal emission controls, including inducement strategies, which could result in a loss of power of an engine; thus, allowing the equipment to temporarily perform emergency-related work. By this action, EPA would help our nation's nonroad equipment perform temporary emergency service; to better ensure public safety and welfare and the protection of lives.
Section 202(a)(1) of the Clean Air Act (CAA or the Act) directs EPA to
Section 202(a)(4)(A) of the Act requires the Administrator to consider risks to public health, welfare or safety in determining whether an emission control device, system or element of design shall be used in a new motor vehicle or new motor vehicle engine. Under section 202(a)(4)(B), the Administrator shall consider available methods for reducing risk to public health, welfare or safety associated with use of such device, system or element of design, as well as the availability of other devices, systems or elements of design which may be used to conform to requirements prescribed by (this subchapter) without causing or contributing to such unreasonable risk.
Section 206(a) of the Act requires EPA to test, or require to be tested in such manner as it deems appropriate, motor vehicles or motor vehicle engines submitted by a manufacturer to determine whether such vehicle or engine conforms to the regulations promulgated under section 202. Section 206(d) provides that EPA shall by regulation establish methods and procedures for making tests under section 206.
Section 213 of the Act gives EPA the authority to establish emissions standards for nonroad engines and vehicles (42 U.S.C. 7547). Sections 213(a)(3) and (a)(4) authorize the Administrator to set standards and require EPA to give appropriate consideration to cost, lead time, noise, energy, and safety factors associated with the application of technology. Section 213(a)(4) authorizes the Administrator to establish standards to control emissions of pollutants (other than those covered by section 213(a)(3)) which “may reasonably be anticipated to endanger public health and welfare.” Section 213(d) requires the standards under section 213 to be subject to sections 206–209 of the Act and to be enforced in the same manner as standards prescribed under section 202 of the Act.
On January 18, 2001, EPA published a rule promulgating more stringent standards for NO
The heavy-duty highway rule adopted in 2001 also included a PM emissions standard for new heavy-duty diesel engines of 0.01 g/bhp-hr, effective for engines beginning with MY 2007. Due to the flexible nature of the phase-in schedule described above, manufacturers have had the opportunity to produce engines that met the PM standard while emitting higher levels of NO
EPA adopted similar technology-forcing standards for nonroad diesel engines on June 29, 2004.
In addition to this notice of proposed rulemaking, EPA is also publishing a Direct Final Rule (DFR) addressing the emergency vehicle provisions described in Section IV of this document. We are doing this to expedite the regulatory process to allow engine and vehicle modifications to occur as soon as possible. However, if we receive relevant adverse comment on distinct elements of the emergency vehicle provisions in this proposal by July 27, 2012, we will publish a timely withdrawal in the
As noted above, EPA is publishing the DFR to expedite the deployment of solutions that will best ensure the readiness of the nation's emergency vehicles. We request that commenters identify in your comments any portions of the emergency vehicle proposed action described in Section IV below with which you agree and support as proposed, in addition to any comments regarding suggestions for improvement or provisions with which you disagree. In the case of a comment that is otherwise unclear whether it is adverse, EPA would interpret relevant comments calling for more flexibility or less restrictions for emergency vehicles as supportive of the direct final rule. In this way, the EPA will be able to adopt those elements of the DFR that are fully supported and most needed today, while considering and addressing any
Note that Docket Number EPA–HQ–OAR–2011–1032 is being used for both the DFR and this Notice of Proposed Rulemaking (NPRM).
Typically, the engines powering our nation's emergency vehicles belong to the same certified engine families as engines that are installed in similarly sized vehicles sold for other public and private uses.
Because of the above-described manufacturing practices and the narrow CAA authority for any exemptions, EPA has historically regulated engines for emergency vehicles, including ambulances as well as police vehicles and fire-fighting apparatus, in the same manner as other engines.
In the public comments received on the proposed heavy-duty highway rule, EPA received some comments about DPF technologies and regeneration cycles on heavy-duty trucks, including one comment that expressed concerns that the systems may not be failsafe.
More recently EPA has received letters from fire apparatus manufacturers and ambulance companies requesting relief from power or speed inducements related to low levels of DEF for SCR systems on emergency vehicles.
Recently, beginning in October 2011, EPA received a series of comment letters from fire chiefs and other interested stakeholders, requesting regulatory action to relieve emergency vehicles from the burden of complying with the 2007 PM standards.
On December 1, 2011, in a proposed rule issued jointly with the National Highway Traffic Safety Administration (NHTSA), EPA proposed to exclude light-duty emergency and police vehicles from all phases of greenhouse gas (GHG) emissions standards, in part due to concerns related to technical feasibility, and in part to harmonize with NHTSA's program. Consistent with authority under the Energy Policy and Conservation Act, NHTSA's corporate average fuel economy program already provides manufacturers with the option to exclude emergency vehicles.
In addition to the above proposed exemption for on-highway engines from GHG standards, EPA has provided limited regulatory relief for other types of emergency-use engines. First, EPA's May 6, 2008 final rule adopting Tier 3 and Tier 4 standards for marine diesel engines allows for emergency and rescue vessels to meet an earlier, less stringent tier of standards under 40 CFR parts 89, 94 and 1042.
EPA also adopted limited exemption provisions for emergency rescue equipment for small spark-ignition nonroad engines in 1999.
In these rules, EPA recognized that equipment and vessels designed and purpose-built exclusively for use in emergency equipment have demanding performance specifications and in some cases extreme duty cycles. The marine diesel provisions also recognize that engines certified to the latest emissions standards requiring emissions after-treatment may create some interference with engine performance or effectiveness that may be needed in emergency circumstances, when installed in some emergency equipment or vessels.
While these provisions do offer limited relief from the latest round of emissions standards for these engines, there is a general requirement to use engines meeting the most stringent emission standards as practical. There are also additional administrative responsibilities related to engine labeling, periodic reporting to EPA, and recordkeeping. These provisions in some cases also expire if compliant engines become available that can practically be used to provide power for the equipment in question. Furthermore, these limited exemption provisions are only applicable to newly certified engines. The regulations do not apply these provisions to in-use engines that are certified and deployed in emergency equipment.
EPA is proposing to amend its regulations to facilitate engine manufacturers' design and implementation of reliable and robust emission control systems with regeneration strategies and other features that do not interfere with the mission of emergency vehicles. Through the comments and letters we have received, as well as our own outreach and data-gathering efforts, we have learned that some emission control systems on fire trucks and ambulances today, in particular, certain applications using diesel particulate filters, are requiring an unexpected amount of operator interventions, and there are currently a nontrivial number of emergency vehicles that are electronically programmed to cut power or speed—even while responding to an emergency—when certain operational parameters are exceeded in relation to the emission control system. As we understand it, the experiences of operators are mixed, with some not reporting any problems and some reporting problems that raise public safety and welfare concerns.
EPA's standards are performance-based, and reflect the greatest degree of emission reduction achievable, according to CAA sections 202(a)(3) and 213(a)(3). Our on-highway and nonroad PM standards do not specify the type of diesel particulate filter for manufacturers to use, nor do they even mandate the use of such a filter. Our analysis of the feasibility of the 2007 on-highway PM standard is presented in Chapter III of the final Regulatory Impact Analysis (RIA) for that rule.
Based on the information available to us, we have concluded that there is an indirect risk to public safety and welfare associated with some examples of emission control systems when they are deployed on emergency vehicles that experience extreme duty cycles. This indirect risk is related to the readiness of emergency vehicles and the risk that they may not be able to respond during emergencies with the full power, torque, or speed that the engine is designed to provide. While this risk is not inherent to the requirement to reduce emissions or to the use of diesel particulate filters on emergency vehicles, EPA believes it is appropriate to ensure that emergency vehicles can perform their emergency missions without the chance of such consequences.
EPA's current rules already provide the opportunity for manufacturers to address many issues through applications for certification of new engines and new vehicles. There is also currently a mechanism for manufacturers to deploy field modifications to the in-use fleet, including those that are substantially similar to approved upgrades for new vehicles, as well as those that apply only to vehicles that are no longer in production. As manufacturers become aware of the need for upgrades or enhancements, this process occurs within the new and in-use fleet with various degrees of application. While that process is occurring today, EPA views this issue as serious enough that we would be remiss if we did not act to ensure that our regulations clearly offer the needed flexibilities for emergency vehicles.
To explain more fully the issues that we are addressing with this action, and hence why we are taking this action, we are providing here some background information on diesel particulate filters and the process of DPF regeneration. DPF's are exhaust after-treatment devices that significantly reduce emissions from diesel-fueled vehicles and equipment. DPF's physically trap PM and remove it from the exhaust stream. Figure IV–1 depicts a schematic of a wall-flow monolith style filter, with the black arrows indicating exhaust gas laden with particles, and the gray arrows indicating filtered exhaust gas. This style of filter is the most common in today's heavy-duty diesel engines, and has very high rates of filtration, in excess of 95 percent.
To be successful, these devices generally must be able to accomplish two things: Collect PM and clean away accumulated PM. There are two main types of PM that can accumulate: Combustible and non-combustible, and two very different types of cleaning methods: Regeneration and ash cleaning. Regeneration occurs relatively frequently, and is designed to complete the combustion (oxidation) of the trapped combustible PM components, releasing them to the exhaust as gas-phase compounds (mostly H
Regeneration, however, is a type of routine DPF cleaning that must occur regularly, and for which EPA does not specify a minimum interval in its regulations, in contrast to the ash cleaning process. At its very essence, regeneration involves burning off the accumulated soot. Since this burning can involve extra heat and/or oxygen or oxygen-containing compounds, this must be done carefully and safely to avoid uncontrolled burns. The discussion below in Section IV.C.(1)(b) describes the three types of routine DPF regeneration: Passive regeneration, automatic active regeneration, and manual (parked) active regeneration. A more detailed discussion is provided in a memorandum to the docket.
When the style of filter installed on a diesel vehicle is the wall-flow type that is predominant in the market today, it physically traps so much of the PM that the particles accumulate on the inside of the filter and if not burned off, this PM can over time block the passages through the filtering media, making it more restrictive to exhaust flow. This is commonly referred to as “trap plugging.” Some other styles of filter, such as flow-through DPF's, are less prone to plugging, but do not generally reduce the PM emission rate sufficiently to meet today's stringent PM standard. Any time something gets in the way of free flowing air through an engine, it creates what we call “exhaust backpressure.” Even a clean, new DPF generates a small amount of exhaust backpressure due to the porous walls through which all of the exhaust flows.
Engines can tolerate a certain range of exhaust backpressure. When an increase in this backpressure, or resistance, is detected, engines can compensate to a point. An increase in exhaust backpressure from a DPF trapping more and more PM represents increased work demanded from the engine to force the exhaust gas through the increasingly restrictive DPF. However, unless the DPF is frequently cleansed of the trapped PM, this increased work
If a DPF is not regenerated and it becomes plugged, there is a risk of two types of failure. The degree of this risk and which consequence may be experienced will depend on the engine and emission control system design. One consequence is that the lack of air flowing through an engine will cause an engine to shut down because it can no longer compensate for the extra work being demanded of it. The other is a risk of catastrophic DPF failure when excessive amounts of trapped PM begin to oxidize at high temperatures (i.e., DPF regeneration temperatures above 1,000 °C) leading to a “runaway” combustion of the PM within the DPF. This can cause temperatures in the filter media to increase beyond its physical tolerance, possibly creating high thermal stresses where the DPF materials could crack or melt. This is an unsafe condition, presenting physical danger to occupants as well as to objects and persons near the vehicle. Further, catastrophic failure can allow significant amounts of the diesel PM to pass through the DPF without being captured. That is, the DPF is destroyed and PM emission control is lost. For all these reasons, most manufacturers generally design their emission control systems to prevent uncontrolled shutdown or runaway DPF regeneration by programming the engine's electronic control module (ECM) to limit maximum engine speed, torque and/or power when excessive backpressures are detected. This mode of engine operation at reduced performance may allow a vehicle to “limp home” to receive service. In extreme cases the ECM may command the engine to shut down to prevent a catastrophic failure.
There are three types of routine DPF regeneration. Passive regeneration refers to methods that rely strictly on the temperatures and constituents normally available in the vehicle's exhaust to oxidize PM from a DPF in a given vehicle application. Passive regeneration is an automatic process that occurs without the intervention of an engine's on-board diagnostic and control systems, and often without any operator notice or knowledge. Passive regeneration is often a continuous process, because of which, it is sometimes referred to as continuous regeneration. In a vehicle whose normal operation does not generate temperatures needed for passive DPF regeneration, the system needs a little help to clean itself. This process is called active regeneration, and supplemental heat inputs to the exhaust are provided to initiate soot oxidation. There are two types of active regeneration: Those that may occur automatically either while the vehicle is in motion, while idling, or while powering an auxiliary device such as a pump or ladder (power take-off (PTO) mode), and those that must be driver-initiated and occur only while the vehicle is stationary and out-of-service.
Vehicles with automatic active regeneration systems require operators to be alert to dashboard lamps and indicators. Written instructions are provided to operators to explain what each lamp means (such as high temperatures or need for regeneration) and what action is called for (such as driving at highway speeds or initiating a manual active regeneration). Because EPA emissions standards are performance based; and therefore, do not dictate any required emission control system technologies or configurations, each manufacturer has the discretion to program the timing and sequence of lamps as needed to inform drivers of the condition of the emission control system. As noted above, it is not uncommon in today's heavy-duty fleet for an engine's ECM to limit its maximum speed, torque or power when a plugging DPF is detected. These engine and emission control system protection measures can alert drivers to the need to change driving conditions to facilitate automatic active regeneration or to make plans to allow for a manual active regeneration.
A manual active regeneration allows the engine's ECM to increase engine speed and exhaust temperature to a greater extent than what is typically allowed during an automatic active regeneration. Because the ECM takes full control of an engine during a manual active regeneration, the vehicle must remain parked and not used for other purposes, such as pumping water in PTO mode. Some manual active regenerations may require towing the vehicle to a special service center, and may occur while the DPF is on the vehicle, or offline with the DPF removed from the vehicle. In such cases, if a spare DPF is not available, the vehicle could be out of service overnight. If a driver disregards such warnings, the risk of uncontrolled engine shutdown or a catastrophic DPF failure may increase. EPA encourages the design of robust systems calling for minimal driver interventions, while providing drivers with clear and early indicators before any interventions are needed. EPA also encourages accurate and thorough operator training to ensure that the correct remedial action is taken at the earliest available time.
Actively regenerating DPF systems typically require sufficient air flow, temperature and soot accumulation before an automatic active regeneration will be requested by the engine's ECM. As mentioned above, this may occur either while the vehicle is in motion or parked, if pre-set engine operating conditions are met (such as speed and temperature). When the engine's ECM signals the initiation of an automatic active regeneration and the extra heat is generated, an ideal DPF system accomplishes this as a transparent process, with no effects perceivable by the driver.
A variety of manufacturer approaches can be taken to produce the supplemental heat needed for active regeneration. Diesel engines of MY 2007 or newer often incorporate one or more of the following approaches:
• On-board electrical heaters upstream of the filter.
• Air-intake throttling in one or more of the engine cylinders. When necessary, this device would limit the amount of air entering the engine, raising the exhaust temperature and facilitating regeneration.
• Exhaust brake activation. When necessary, this device would limit the amount of exhaust exiting the engine, raising the exhaust temperature and facilitating regeneration.
• Engine speed increases. This approach is sometimes used in combination with the other approaches to deliver more heat to the filter to facilitate regeneration.
• Post top-dead-center (TDC) fuel injection. Injecting small amounts of fuel in the cylinders of a diesel engine after pistons have reached TDC introduces a small amount of unburned fuel in the engine's exhaust gases. This unburned fuel can then be oxidized over an oxidation catalyst upstream of the filter or oxidized over a catalyzed particulate filter to combust accumulated particulate matter.
• Post injection of diesel fuel in the exhaust upstream of an oxidation catalyst and/or catalyzed particulate filter. This method serves to generate heat used to combust accumulated particulates by oxidizing fuel across a catalyst present on the filter or on an oxidation catalyst upstream of the filter
• On-board fuel burners upstream of the filter.
These are presented here merely as examples, and are by no means a complete list of the strategies available to manufacturers when designing engines that use automatic active DPF regeneration, though not all may be applicable to all engines. A common approach that gets a lot of consumer attention is the use of fuel burners or fuel injection strategies. This approach is often called “dosing.” Vehicle owners may notice an increase in fuel consumption when driving a vehicle that relies heavily on fuel dosing for its automatic active regenerations. In this case, when an engine's ECM gives the signal, the doser injects a metered amount of diesel fuel into the exhaust flow (or cylinders), which reacts with the DPF catalyst to raise the temperature to a point that enables regeneration. EPA does not have information about which manufacturers employ this technique or the number or types of vehicles with engines that use fuel dosing as part of the active regeneration strategy. Estimates of the additional fuel use by a vehicle whose DPF regeneration system employs fuel dosing are described below in Section VII.B. This is also mentioned here because one of the possible outcomes of this EPA action is that some manufacturers may alter their strategies for automatic active regenerations on emergency vehicles, which may have a modest effect on supplemental fuel use due to dosing. Further discussion of this is provided below in Section VII.
At the time of promulgation of the heavy-duty highway rule, EPA and the engine manufacturers expected the 2007-compliant engine emission control systems would be integrated with advanced engine controls to ensure DPF regeneration under all vehicle operating conditions and environments. While this is widely true today, the experience of the rule implementation thus far indicates there are still some exceptions.
Although EPA is aware of a relatively small number of emergency vehicles that are experiencing problems with DPF regeneration, of those that are having problems, most of the problems can be related to the vehicle's duty cycle, the ambient conditions, and/or the engine's combustion characteristics. A vehicle's duty cycle means how it is driven, including its speeds, loads, and distances, as well as time out of service and time spent idling. A vehicle's duty cycle can vary by the demographic of the service area, including whether the vehicle responds to emergencies in a rural or urban community, and whether it drives over flat or hilly terrain. Because DPF regeneration requires heat and oxygen (basic ingredients for combustion), the success of DPF regeneration strategies can also be influenced by ambient conditions such as extreme cold winter temperatures and whether the vehicle operates near sea level or at a high elevation. The engine combustion and exhaust characteristics can influence the success of a DPF regeneration strategy since parameters such as engine-out NO
Both the engine's duty cycle and the overall control strategy of the engine's emission control system play a large role in the success of integrating a DPF with an engine to control PM emissions. In this section we provide additional discussion of how engine combustion characteristics and vehicle duty cycle can lead to DPF regeneration problems on emergency vehicles. In Section IV.E, below, we discuss our proposed regulatory action to address these issues. While our proposed approach specifically targets engine combustion characteristics and emission control system design, we encourage emergency vehicle owners to inquire with their dealers and manufacturers regarding suitable vehicle and engine options that are appropriate for their duty cycle as well as their demographic and geographic location.
Engine combustion characteristics can be designed to enable continuous passive regeneration or to rely heavily on automatic active regeneration. As mentioned above, regeneration is a combustion process, burning off the accumulated PM or soot. The PM is created because the initial combustion process in the engine was imperfect. To completely convert all fuel to CO
In an engine with a DPF system, combustion settings, or calibrations that enable continuous passive regeneration, tend to be those with higher engine-out NO
Thus it is important to note that this NO
As noted above, the duty cycle of a vehicle is one of the factors that influences how often the DPF regenerates passively or actively. It is important to note that all DPF systems with active regeneration components also have the capability to passively oxidize soot accumulated on the filter, though some of the above-described factors may inhibit successful passive regeneration. Operation at highway speeds and high engine loads (high load means demanding more work from the engine, such as accelerating, driving uphill or carrying heavy cargo) typically leads to successful passive regeneration of a DPF. An example from a duty-cycle perspective of a vehicle that frequently experiences automatic passive regeneration would be a long-haul tractor-trailer. There is also often a threshold of speed or load that is required for automatic active regeneration strategies as well, though not as great as for passive regeneration—often at least 5 miles/hour or parked with a PTO engaged. In some vehicles, passive regeneration occurs so rarely that a DPF system relies almost exclusively on active regenerations to maintain a clean PM filter. An example of this from a duty-cycle perspective would be a vehicle that operates at idle, low speed and low load over most of its duty cycle. Many emergency vehicles fall into this category.
It is possible to collect duty cycle data from trucks by extracting information that is broadcast by the engine's ECM. ECM's broadcast information such as engine speed, load, temperature, DPF backpressure, and many other parameters relevant to engine operation. In 2004 the Fire Apparatus Manufacturers Association conducted a data-collection project, downloading logged data from emergency vehicles in use across the United States, to document duty cycles and engine conditions typically experienced in the emergency fleet, including pumpers, aerials, and rescue vehicles in urban, suburban and rural communities.
Table IV–2 presents operating data by both vehicle type and demographic, and Table IV–3 presents an overview of the data by vehicle type.
We can see from this study that engines on emergency vehicles across the country are commonly operated over duty cycles that offer very limited opportunities to regenerate DPF's. It is also important to note that emergency vehicles do not typically get deployed on planned duty schedules with predictable blocks of garage time for servicing or maintenance. While some other types of vocational vehicles may have duty cycles with many characteristics similar to those shown above, emergency vehicles are unique in their need to be ready to deploy at any moment for the purpose of protecting public safety and welfare by saving human lives that may be in immediate danger.
When trucks with an engine-driven PTO are working in a stationary PTO mode, some engines achieve the conditions to enable an automatic active regeneration during this time. While this is normally designed to be a transparent process, in practice some effects of this type of regeneration have been noticed by operators. EPA has received information from fire chiefs indicating that there have been instances where engine ECM's took control from the operator during water pumping operations. When an automatic active regeneration is initiated during a water pumping operation, for example, an ECM may be programmed to alter throttle position or engine speed to achieve the conditions needed to complete an automatic active regeneration. Depending on the design of the water pumping system's pressure regulation, this may in turn affect the water pressure in the fire hoses. EPA has not heard of this occurring on a widespread basis, and has reason to believe that affected engine and truck manufacturers have identified and corrected this issue on some vehicles. EPA's current regulations already allow manufacturers to develop and request EPA approval for certification of engines with emission control strategies where the process of undergoing automatic active regeneration would not interfere with safely pumping fire suppressant. EPA requests comment on whether any EPA action should be taken to explicitly address this situation beyond what we are already proposing in this action.
While not addressed directly in this proposed action, there are technologies that could be implemented to decrease the amount of time emergency vehicles spend with their main engines operating at light loads and at idle. These technologies include electronically programmed automatic engine start/stop systems and hybrids. Automatic start/stop systems automatically stop and start an engine depending upon whether or not it is needed to supply power to the vehicle. This technology is already being implemented on other heavy-duty vehicles to decrease unnecessary engine idling. Hybrid drivetrains also decrease engine idling with an integrated alternate power source such as a battery. We are currently seeing an increase in the use of hybrid technologies in heavy-duty diesel vocational vehicles. Garbage trucks, utility company trucks, and other work trucks are using hybrid technology to power on-board hydraulic systems and cab heating and cooling systems. In conventional vehicles these systems are powered by a main engine typically operating at light load or at idle. Because automatic start/stop and hybrid technologies improve fuel economy and decrease greenhouse gas emissions, we believe that they will be used in more and more vehicles in the future. We believe there is potential for these technologies to be integrated into future designs of emergency vehicles to decrease their operation at light loads and at idle. Such technologies would not only improve fuel economy and decrease greenhouse gas emissions from emergency vehicles, they would also help to prevent their diesel particulate filters from becoming plugged due to excessive operation at light loads and at idle. While we are not proposing any specific action at this time related to decreasing the amount of time emergency vehicles operate at light load or at idle, we request comment on the potential for application of alternate power sources and idle reduction technologies on emergency vehicles.
Selective Catalytic Reduction (SCR) is an exhaust after-treatment system used to control NO
Most engine manufacturers chose to comply with the 2010 NO
DEF is injected into the exhaust upstream of the SCR catalyst where it forms ammonia and carbon dioxide. The ammonia then reacts with NO and NO
Because an SCR system is only effective when DEF is injected into the exhaust, we consider refilling a vehicle's DEF tank to be a critical emission-related engine maintenance requirement. We are taking action elsewhere in this notice (See Section V) to establish this in our regulations. Therefore, manufacturers have implemented a number of strategies to induce a vehicle operator to refill a vehicle's DEF tank when needed. These operator inducements generally include first illuminating one or more dashboard lights to warn the operator that the DEF tank needs to be refilled soon. However, if such initial inducements are persistently ignored by the vehicle operator, eventually additional inducements are typically activated that decrease the maximum speed or power of the vehicle. These additional inducements are intended to create conditions making operational conditions of the vehicle increasingly unacceptable if the initial dashboard lamp illumination inducements are persistently ignored. Similar inducements may occur in cases where DEF quality does not meet system specifications, or if the SCR system is not functioning correctly for another reason.
While decreasing vehicle performance can be an effective inducement strategy, we believe it may not be appropriate in all situations for emergency vehicles because of their special need to be ready at any moment for the purpose of protecting public safety and welfare by saving human lives that may be in immediate danger. We recognized this during the initial implementation of our 2010 NO
Improving the components of diesel particulate filters is the current subject of research and development activities within the automotive and air pollution control industries. Aspects that are being improved include filter ash storage capacity, filter pressure drop, substrate durability, catalyst activity, as well as other physical and chemical properties that can optimize the device for heavy-duty vehicle applications.
Engine manufacturers have taken a systems approach, optimizing the engine with its after-treatment system to realize the best overall performance possible. Manufacturers can manage the functioning of the emission control system by adjusting parameters such as the thermal profile of the after-treatment system, the exhaust gas chemical composition, the rate of consumption of DEF, the rate of particle deposition, and the conditions under which DPF regenerations (soot cleaning) may occur.
In a broad and general sense, the trend is that DPF's are slowly becoming even more robust without EPA intervention. Future DPF's will need fewer total regenerations during the useful life of the engine and control system, more passive and fewer active regenerations will occur, and manual regenerations will become rarer.
In addition, vehicle operators and fleet managers will continue to become more experienced with this new generation of sophisticated electronically-controlled vehicles. Manufacturers across the country are providing training on actions fleet managers can take to decrease problems with DPF regenerations. These actions include:
• Use low-ash engine oils.
• Avoid extended idling.
• Maintain insulation on the exhaust pipe.
• Maintain the crankcase filter.
• Periodically operate a vehicle at higher speeds and loads.
The Technology & Maintenance Council (TMC) of the American Trucking Associations conducted a survey in late 2011 to compare user experiences between EPA 2010, EPA 2007, and EPA 2004 vintage trucks.
Vehicles with 2010-compliant heavy-duty diesel engines tend to place different demands on their DPF systems than pre-2010 vehicles. With the addition of NO
Even though such trends would indicate that instances of emergency vehicles experiencing difficulty managing regeneration of DPF's would decrease, in the absence of this EPA action, some vehicles would be likely to continue to experience some problems.
EPA has learned that some engine manufacturers have disabled these engine protection measures on some emergency vehicles. In these cases the manufacturer has reasoned that an operator should be allowed to remain in control of an emergency vehicle even facing risk of catastrophic failure, with the consequences of that failure being less severe than the consequences of the vehicle prematurely losing power, torque and/or speed while performing emergency services.
Without a clear action from EPA to provide the regulatory flexibility needed for swift deployment of robust remedies throughout the emergency vehicle fleet, implementation of best practices could be inconsistent, insufficient, or even impossible due to regulatory constraints. Some vehicles would continue to experience frequent plugging of DPF's, frequent forced filter regenerations, and reduced engine power, speed or torque that diminish the ability of first responders to save lives and property. There would also remain a heightened risk that an emergency vehicle could be taken out of service when it is most needed.
As described above in Section IV.C, many DPF-equipped vehicles include engine controls and driver alerts that lead to decreases in maximum speed, torque, or power when DPF backpressure exceeds normal levels, as protective measures for either the engine or the DPF, or as inducements for the operator to immediately conduct DPF regeneration. Similarly, vehicles equipped with selective catalytic reduction (SCR) systems for NO
In our current regulations, engine manufacturers may request as part of an application for new engine or vehicle certification, and EPA may approve, Auxiliary Emission Control Devices, if they are not determined to be “defeat devices.” Auxiliary Emission Control Devices, or AECD's, are any design element of an engine's emission control system that senses temperature, vehicle speed, engine RPM, transmission gear, manifold vacuum, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission control system.
A defeat device is a type of AECD that reduces the effectiveness of vehicle emission controls in situations when such reduction in effectiveness is not approved or permitted by EPA. Defeat devices are not permitted by the Clean Air Act or EPA.
Approvals of AECD's are made by EPA on a case-by-case basis. In applications for engine certification, manufacturers must include a detailed description of each AECD to be installed in or on any vehicle (or engine) covered by the application, as well as a detailed justification of each AECD that results in a reduction in effectiveness of the emission control system. According to 40 CFR 86.094–21(b)(1)(i)(B), EPA may disapprove a request for an AECD based on consideration of currently available technology. Use of an unauthorized or disapproved AECD can be considered a violation of section 203 of the Act.
In this action, EPA is proposing to revise the definition of
In this action, EPA is proposing to define an
EPA is also proposing an associated engine labeling requirement so that engines with approved emergency vehicle AECD's would be clearly identified and distinguished from other similar engines.
As mentioned above in Section IV.C, some engine manufacturers currently specify that when an engine is sold for installation in an emergency vehicle, some of the default power, torque or speed inducements be de-activated or set to alternate, less severe settings. In such applications, when the DPF system requests regeneration, the warning lights remain illuminated while the vehicle remains in complete control of the driver. In these cases the manufacturer has likely reasoned that the consequences of catastrophic failure would be less severe than the consequences of the vehicle prematurely losing power, torque and/or speed while performing emergency services. EPA has granted related AECD's in the past.
However, without the proposed optional flexibilities provided by EPA in this action, manufacturers could be prevented from implementing truly failsafe solutions for all affected vehicles. For example, while current custom solutions may allow an emergency vehicle to continue pumping water or transporting a person to safety, its DPF would continue to accumulate particles and the risk of catastrophic failure would increase.
In this action, EPA is proposing amendments so that manufacturers could apply for (and EPA could approve) AECD's that would be justified in terms of preventing the occurrence of abnormal conditions of the emission control systems for emergency vehicles or in terms of preventing the engines from losing speed, torque, or power due to such abnormal conditions. In this context, EPA would consider abnormal conditions to be parameters outside normal ranges for proper operation, such as excessive exhaust backpressure from high soot loading on a DPF or insufficient DEF for use with an SCR system.
EPA is encouraging manufacturers to apply for AECD's that are tailored for engines on emergency vehicles, considering the duty cycle information presented above in Section IV.C(2)(b) along with any other information needed to design failsafe emission control systems for new emergency vehicles. EPA is also encouraging manufacturers to design field modifications to address these issues on in-use emergency vehicles, including those whose engines are no longer in production. Further discussion of field modifications is provided below in Section IV.F(2).
To achieve these goals, EPA understands that increased flexibility would be needed because EPA's strict NO
It is current practice that most modern diesel engine ECM's are set to initiate an automatic active regeneration only above a designated DPF soot load, and those vehicles equipped with manual regeneration switches are set to not allow the option of initiating manual active regeneration until an even greater soot load is detected. The reason why manufacturers do this is related to certification of engine families and vehicle test groups. If manufacturers can limit the frequency of regenerations by design, then they can be assured that average emissions will remain below the certified average emission level. Excess regenerations could lead to higher average emissions, since some exhaust emissions increase during regeneration. Particularly for engines not equipped with SCR systems, NO
EPA believes that emergency vehicle AECD's that enable more frequent automatic active and manual active DPF regenerations, associated with a wider range of soot loads could improve the reliability of DPF systems without significantly compromising emissions reductions or durability. As explained below Section IV.F(4), EPA does not expect this provision to affect other aspects of certification. For emergency vehicles with approved AECD's that involve changes in the frequency of regeneration, EPA proposes that the resulting increase in NO
As mentioned above, in-cylinder combustion chemistry dictates a NO
It is EPA's objective that all of our clean diesel emissions standards be implemented with reliable technologies that require a minimum amount of driver intervention and do not compromise the utility of vehicles. EPA understands that manufacturers are motivated to seek design solutions that are cost effective and easily deployable. However, by focusing solely on preventive measures such as those described above, manufacturers may not achieve a completely failsafe DPF strategy on all emergency vehicles. EPA anticipates that some vehicles may benefit from an additional failsafe measure that relieves engine exhaust backpressure as a last resort to prevent loss of engine speed, torque or power. There are products on the market today that could be configured to temporarily relieve excessive engine exhaust backpressure when detected, then return the system to normal at the instant that backpressure returns to a safe level. Such a device may be justified as a failsafe measure, and may be included as part of an overall strategy that also includes preventive measures, if justified and properly limited, where excess PM emissions would be expected to be emitted only during a small fraction of vehicle operation. That is, the vast majority of DPF operating cycles would be expected to have continuous PM emission control, while any temporary backpressure relief that reduced PM control or allowed bypass of controls would be expected relatively infrequently. EPA requests comment on whether a failsafe measure to provide engine exhaust backpressure relief should be available as an approvable AECD option, and what constraints, if any, should be established for this option.
Today's proposal would apply to new and in-use fire trucks and ambulances, new and in-use airport fire apparatus and wildland fire apparatus, and heavy-duty diesel engines on these emergency vehicles and equipment.
Of those new diesel engines covered by EPA's current heavy-duty diesel standards, only those installed in vehicles or equipment meeting the definition of emergency vehicle or emergency equipment would be eligible to obtain an approved AECD of the type discussed above in Section IV.E. Where a vehicle is chassis-certified and either sold as an incomplete vehicle to a truck body manufacturer or built and sold as a complete vehicle, only those sold and built as emergency vehicles would be eligible to obtain an approved AECD of the type discussed above in Section IV.E.
To address in-use engines and vehicles, EPA proposes to allow engine and vehicle manufacturers to submit requests for EPA approval of Emergency Vehicle Field Modifications (EVFMs) for on-highway emergency vehicles and Emergency Equipment Field Modifications (EEFMs) for nonroad emergency equipment. EVFMs and EEFMs would be modifications to existing hardware and software to be installed on in-use vehicles or equipment to prevent loss of speed, torque, or power due to abnormal conditions of emission control systems, or to prevent such abnormal conditions from occurring, during vehicle or equipment operation related to emergency response. EPA proposes to use an approval process similar to the process that is currently utilized to submit modifications to current applications for certification, also known as “running changes.” The information submitted by a manufacturer to EPA as part of this request and approval process would be similar to the information submitted for emergency vehicle or equipment AECD's.
It is important to emphasize that this proposal would allow only those approved modifications to be deployed by manufacturers and their authorized dealers. Modifications made by end users are not generally approvable; rather the tampering prohibitions would generally apply to such modifications.
EPA has identified three types of field modifications that would be permitted for emergency vehicles and emergency equipment under the proposed regulations, based on the extent to which the modification is being incorporated into new production vehicles and equipment. The three types are:
•
•
•
The amount of justification needed for the field modification differs depending
Because the engines and vehicles eligible for the AECD's described in this proposal belong to broadly certified engine families and test groups, when they are sold for installation in an emergency vehicle and equipped with one or more approved emergency vehicle AECD's, they must be labeled as such, to distinguish them from other certified engines. EPA is proposing adding a labeling requirement to 40 CFR part 86 subpart A, such that engines with one or more approved AECD's for emergency vehicle applications must be labeled with the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY VEHICLES ONLY.” EPA is also proposing adding a labeling requirement to 40 CFR part 86 subpart S, such that vehicles with one or more approved AECD's for emergency vehicles, include the following statement on the emission control information label: “THIS VEHICLE HAS A LIMITED EXEMPTION AS AN EMERGENCY VEHICLE.” EPA is also adding a labeling requirement to 40 CFR part 1039, such that nonroad engines with one or more approved AECD's for emergency equipment include a label with the following statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY EQUIPMENT ONLY.”
EPA requests comment on whether these labeling requirements are satisfactory to ensure that engines and vehicles operating with approved emergency AECD's are permanently distinguished from similar certified engines. EPA also requests comment on whether a similar label should be required for an in-use emergency vehicle or equipment where a field modification is deployed that prevents the engine from losing speed, torque, or power due to any occurrences of abnormal conditions of the emission control system, or prevents such abnormal conditions from occurring.
Today's proposal would not alter the tampering prohibition in 40 CFR 1068.101(b)(1). This provision describes a general prohibition against anyone from removing or rendering inoperative an engine's emission controls before or after entering into service, where an exception is provided in 1068.101(b)(1)(ii) for engine modifications needed to respond to a temporary emergency, provided that the engine is restored to proper functioning as soon as possible after the emergency has passed. EPA encourages manufacturers to design their emergency vehicle AECD's to be engaged only to the extent necessary to prevent the engine from losing speed, torque, or power due to abnormal conditions of the emission control system, or to prevent such abnormal conditions from occurring during operation related to emergency response. EPA recognizes that there may be cases where an AECD may need to be engaged at times other than while actively responding to an emergency, in order to assure that loss of speed, torque or power does not occur during operation related to emergency response. EPA also recognizes that some AECD's may involve electronic approaches where the engine's functions would be modulated based on exhaust backpressure or other parameters that are not correlated with any emergency situation. EPA may even, in extreme cases, such as at high altitude or with certain older MY engines allow engagement of AECD's at all times, if they are justified as necessary to prevent engine from losing speed, torque, or power during operation related to emergency response.
We would also encourage manufacturers to design their emission control systems to discourage tampering. According to EPA's tampering prohibition, a vehicle operator who abuses or alters an approved AECD may be guilty of tampering. For example, if an AECD includes enabling an operator to initiate more frequent manual active regenerations, engine manufacturers may choose to prevent the abuse of this function by means such as a daily or weekly cap on the number of manual active regenerations, or a minimum soot loading for the function to engage. As another example, if an emergency vehicle alerts a driver to an abnormal condition of its emission control system by illuminating dash lamps, alarms or other warnings that do not limit vehicle performance, it is the operator's responsibility to take prompt action to remedy the problem.
Manufacturers of highway and nonroad engines would be required to describe any emergency vehicle AECD in an application for certification. In this action, we are not proposing any revisions to the information needed to review and approve AECD's. It is common practice for manufacturers, in describing AECD's, to identify engine parameters such as those that would operate differently to preserve adequate engine performance during an emergency, including information about how the engine would respond under different in-use operating conditions under the various sets of conditions that would otherwise cause the engine to operate at less than full performance levels. Other than the requirement for a manufacturer to describe the emergency vehicle AECD in its application for certification, we do not expect this provision to be relevant for other aspects of certification. For example, EPA proposes that emissions certification testing be conducted with any approved AECD's for emergency vehicle or equipment deactivated. Additionally, manufacturers would not need to consider emergency vehicle AECD's when developing infrequent regeneration adjustment factors (IRAFs) or when developing deterioration factors (DFs). Thus, EPA proposes that manufacturers could include emergency and non-emergency engines and vehicles in the same engine families and test groups. EPA also proposes that manufacturers may apply for emergency vehicle AECD's for new, existing, and/or formerly approved emissions certificates. EPA requests comments on this aspect of the proposal.
EPA is proposing to include new provisions in its regulations that explicitly permit replacement of diesel exhaust fluid (DEF) as part of approved emission-related scheduled maintenance and set out the permitted maintenance intervals for replacement of DEF on diesel fueled new motor vehicles, new motor vehicle engines and new nonroad compression-ignition (NRCI) engines.
EPA's regulations define the emission-related scheduled maintenance that may be performed for purposes of durability testing and for inclusion in maintenance instructions provided to purchasers of new motor vehicles and new motor vehicle engines.
Similarly, EPA's regulations applicable to nonroad compression-ignition (NRCI) engines define the emission-related maintenance that may be performed for purposes of providing ultimate purchasers written instructions for properly maintaining and using the engine. Such emission-related maintenance and associated intervals apply to service accumulation on emission-data engines. See 40 CFR 1039.125. This regulation includes lists of emission-related maintenance and intervals for this maintenance. See 40 CFR 1039.125(a)(2) and 1039.125(a)(3). For example, in general, the maintenance interval for adjustment, cleaning, repair or replacement for catalytic converters on engines below 130 kilowatt (kW) may not occur more frequently than after 3,000 hours and 4,500 hours for engines at or above 130 kW. This regulation also includes a procedure that allows manufacturers to request a different maintenance schedule or to request new scheduled maintenance, which includes maintenance on emission-related components that were not in widespread use on NRCI engines prior to 2011.
EPA adopted new emission standards applicable to emissions of NO
In addition, EPA adopted new emission standards applicable to emissions of NO
In a Guidance Document signed on March 27, 2007 (CISD–07–07), EPA indicated its belief that the requirements for critical emission-related maintenance would apply to replenishment of the DEF tank and that manufacturers wanting to use SCR technology would likely have to request a change to scheduled maintenance per 40 CFR 86.1834–01(b)(7) or 86.094–25(b)(7).
Following the completion of the Guidance, EPA received several requests for new maintenance intervals for SCR-equipped motor vehicles and motor vehicle engines.
EPA approved a maintenance interval for refill of DEF tanks equal to the applicable vehicle's scheduled oil change interval for light-duty vehicles and light-duty trucks. For heavy-duty engines, EPA approved a maintenance interval equal to the range (in miles or hours) of the vehicle operation that is no less than the vehicle's fuel capacity (i.e., a 1:1 ratio), for vocational vehicles such as dump trucks, concrete mixers, refuse trucks and similar typically centrally fueled applications. For all other vehicles equipped with a constantly viewable DEF level indicator (e.g. a gauge or other mechanism on the dashboard that will notify the driver of the DEF fill level and the ability to warn the driver of the need to refill the DEF tank before other inducements occur), EPA approved a DEF tank refill interval equal to no less than twice the range of vehicle's fuel capacity (i.e., a 2:1 ratio). For all other vehicles that do not have a constantly viewable DEF level indicator, EPA approved a DEF tank refill interval equal to no less than three times the range of the vehicle's fuel capacity (i.e., a 3:1 ratio).
Engine and vehicle manufacturers provided additional requests for new maintenance intervals for vehicles and engines in model years not covered by the November 9, 2009
On July 26, 2011, EPA conducted a webinar workshop for NRCI engine manufacturers in order to provide EPA's thinking, at the time, about the certification of SCR-equipped NRCI engines. EPA discussed the issue of maintenance intervals for the refill of DEF and instructed manufacturers to follow the regulatory provisions in order to petition EPA for what it thought were appropriate intervals. Following the workshop, EPA received several requests for new maintenance intervals for SCR-equipped NRCI engines. EPA granted these requests for 2011 and later model years in a notice that was published in the
EPA approved a maintenance interval for refill of DEF tanks that shall be no less than the equipment's fuel capacity (i.e., a 1:1 ratio of DEF refill to fuel refill).
EPA is today proposing to add DEF replenishment to the list of scheduled emission-related maintenance for diesel-fueled motor vehicles and motor vehicle engines, as well as for NRCI engines that use SCR. EPA is also proposing to incorporate appropriate maintenance intervals for this scheduled maintenance.
EPA is proposing to list DEF replenishment as scheduled emission-related maintenance in 40 CFR 86.004–25(b)(4) and 40 CFR 86.1834–01(b)(4) for diesel-fueled motor vehicles and motor vehicle engines, as well as 40 CFR 1039.125(a)(2) and 40 CFR 1039.125(a)(3) for NRCI engines that use SCR.
Over the past several model years, since the implementation of the most recent standards for NO
EPA is also proposing to incorporate appropriate maintenance intervals for this scheduled maintenance. In general, they are the same as were approved under the (b)(7) process. For light-duty vehicles and light-duty trucks, we are proposing an interval equal to the scheduled oil change interval for the vehicle. Light-duty vehicles and trucks do not have the carrying and storage capacity required for the quantity of DEF needed to satisfy longer maintenance intervals such as the 100,000 mile scheduled maintenance interval generally applicable to catalytic converters. As EPA explained in its previous notices regarding this issue, automobile manufacturers have stated that it takes approximately an 8 gallon DEF tank to assure the DEF will last for the length of a typical scheduled oil change interval. Assuming an oil change interval of 10,000 miles, a DEF tank size of approximately 80 gallons would be required to meet a 100,000 mile DEF refill maintenance interval. Even a 16–20 gallon DEF tank (to meet a 2 oil change interval) would interfere with the space that is necessary for typical light-duty vehicle design and transportation needs of the consumer. Interior cabin volume and cargo space are highly valued attributes in light-duty vehicles and trucks. Manufacturers have historically strived to optimize these attributes, even to the point of switching a vehicle from rear-wheel drive to front-wheel drive to gain the extra interior cabin space taken up by where the drive shaft tunnel existed, or switching the size of the spare tire from a conventional sized tire to a small temporary tire to gain additional trunk space. Thus any significant interior, cargo or trunk space used to store a DEF tank would be unacceptable to customers. There are also packaging concerns with placing a large DEF tank in the engine compartment or in the vehicle's undercarriage. Most vehicle undercarriages are already crowded with the engine, exhaust system, including catalytic converters and mufflers, fuel tank, etc. limiting any available space for a DEF tank.
In addition to the inherently space constrained areas on the vehicle to place both fuel tanks and DEF tanks (an additional 8 gallon tank represents a very significant demand for space) the addition of the weight associated with the DEF represents significant concerns (e.g. performance and efficiency) on the operation of the vehicle. For example, assuming a density of 9 lb/gallon, an 8 gallon DEF tank represents an additional 72 lbs on a vehicle already looking to optimize performance. Adding additional DEF tank size to even accommodate a two-oil change interval is not feasible or practical given these weight constraints. A requirement for a larger DEF tank may also have an adverse effect on the ability of a manufacturer to meet greenhouse gas emission standards and fuel economy standards.
EPA notes that a DEF refill maintenance interval that is equivalent and occurring with the oil change interval is a fairly long interval (e.g. 7,500 to 12,500 miles) for light-duty vehicles and trucks and is not likely to result in overly frequent maintenance under typical vehicle driving. EPA also believes that an adequate DEF supply will be available to perform the DEF refills at the stated intervals. EPA believes it important to also consider when, where and how often vehicle owners or operators are most likely to perform the DEF refill maintenance. For light-duty vehicles and light-duty trucks, EPA believes the requested DEF refill interval's association with the oil change interval is appropriate given the likelihood of DEF availability at service
EPA also notes that heavy-duty engines that are certified as part of complete trucks have been treated in the same manner as light-duty trucks and thus have been subject to the DEF refill interval associated with the oil change. We are proposing to continue this treatment in the regulations. In addition, EPA is aware that several manufacturers are exploring whether the DEF refill interval should not be linked to the oil change interval since the historical oil change interval (e.g., 7,000–8,500 miles) is potentially increasing to higher mile intervals (e.g., 15,000 to 30,000 miles, even higher for synthetic oil). We invite comment on the necessity and appropriateness of “de-linking” the DEF refill interval from the oil change interval, as well as comments on proper methods to increase the likelihood that DEF refill maintenance would occur in the appropriate interval (e.g., linking to vehicle fuel capacity, inducement criteria, etc.), should it not be linked to the oil change interval.
For heavy-duty engines, we are proposing that for vocational vehicles such as dump trucks, concrete mixers, refuse trucks and similar typically centrally fueled applications, the DEF tank refill interval should equal the range (in miles or hours) of the vehicle operation that is no less than the vehicle's fuel capacity (i.e., a 1:1 ratio). For all other vehicles, the DEF tank refill interval must provide a range of vehicle operation that is no less than twice the range of vehicle's fuel capacity (i.e., a 2:1 ratio). EPA believes it is reasonable to base the DEF refilling event on diesel refueling intervals given that it is likely that the DEF refill maintenance would be undertaken at the time of fuel refill due to DEF infrastructure developed at diesel refueling stations. EPA believes that these DEF refilling intervals are technologically necessary. EPA knows of no SCR technology for any heavy-duty engine application that is capable of operating without a DEF refill for the high mileage levels associated with other maintenance intervals. As an example, assuming that 25,000 gallons of diesel fuel were consumed to reach a 150,000-mile interval, the amount of DEF required (assuming a 3% DEF consumption rate) would require 750 gallons of DEF weighing approximately 6,750 lbs. A line-haul truck is allowed a maximum gross vehicle weight of 85,000 lbs. of which approximately 45,000 pounds is for cargo carrying. A DEF tank of 750 gallons would reduce the cargo-carrying capacity by 15%. Another example from the line haul industry suggests that a DEF tank size of over 900 gallons would be needed to reach the 150,000-mile interval for a common highway vehicle with a diesel fuel capacity of 200 gallons and achieving 6.5 miles per gallon fuel economy. Similarly, a medium heavy-duty engine (“chassis cabs”) example would require 375 gallons of DEF weighing 3,275 lbs to meet a 150,000-mile interval. EPA believes that such tank sizes are clearly not technologically feasible in light of the weight and space demands and constraints on heavy-duty trucks and the consumer demand to maximize cargo carrying capacity.
The Agency also believes that intervals shorter than 150,000 miles but longer than those we are proposing would require DEF tanks that are too large or too heavy to be feasibly incorporated into vehicles. Available data show that heavy-duty engines equipped with SCR-based systems will consume DEF at a rate that is approximately 2%-4% of the rate of diesel fuel consumption. Because of inherent space and weight constraints in the configuration and efficient operation of heavy-duty vehicles, there are size limits on the DEF tanks. Currently, there are truck weight limits that manufacturers must address when making or modifying truck designs. EPA expects and believes that manufacturers are taking significant and appropriate steps in order to install reasonably sized DEF tanks to achieve the DEF refills intervals noted. For example, manufacturers are taking such steps as reducing the number of battery packs on vehicles despite customer demands or designing space saving configurations, in some instances extending an already very limited frame rail distance to incorporate the DEF tanks and SCR systems, moving compressed air tanks inside the frame rails, redesigning fuel tank configurations at significant costs, and otherwise working with significant size and weight constraints to incorporate DEF tanks. There are several factors that support the good engineering judgment that underlies the recommended DEF refill intervals. The great majority of heavy-duty engines produced with SCR DEF tanks will provide a range of vehicle operation that is no less than twice the range of the vehicle's fuel capacity; thus, the DEF tank size will provide at least double the vehicle's operating range as provided by the fuel tank. Vehicle operators will generally refill DEF at the same time and location that they refill the tanks thus these vehicles will already be carrying twice as much DEF as the SCR system could ever consume between refills. Also, manufacturers have been incorporating warning signals and performance-related inducements on their SCR-equipped vehicles to ensure the substantial likelihood that DEF refilling will occur,
EPA was provided with examples of the consequences of requiring heavy-duty vehicles to accommodate a DEF refill interval of 5:1, and the information provided to the Agency strongly suggested that great compromises would be required in cost, weight and utility. Increased tank sizes and weights on the magnitude of 150 to 325 lbs. would be required and in some cases diesel fuel volumes would need to be reduced. The extra weight associated with the DEF required to meet the 2:1 refill intervals represents a significant challenge to manufacturers seeking to meet both weight and size requirements for their vehicle designs. In addition, requiring a longer DEF refill interval may result in increased greenhouse gases and decreased fuel economy. EPA believes that in light of the existing tight space constraints and the overall desire to maximize cargo-carrying capacity to minimize emissions and meet consumer operational demands, and the built-in DEF tank size buffer to insure DEF refills, that the proposed tank DEF tank sizes are technologically necessary and are also reasonable and appropriate. EPA believes that requiring tank sizes above these ratios will cause increases in space constraints and weight that would not be appropriate for these vehicles. Similarly, manufacturers note that only a small number of applications will employ the 1:1 refilling ratio and that such vehicle applications have very limited vehicle space available to house surplus DEF. Such applications (e.g., a garbage truck, concrete mixer, beverage truck, or airport refueler) will also be refueled daily at central locations. At approximately 0.134 ft
During the previous administrative process leading to the January 5, 2012
EPA has received comments from certain manufacturers indicating that EPA should set the minimum required DEF refill interval at an interval equal to the vehicle's fuel capacity (i.e., a 1:1 ratio) for all heavy-duty engines.
The commenters also state that EPA's promulgation of new standards regulating greenhouse gases increase the size and weight restraints associated with DEF tank size.
EPA has adopted new greenhouse gas standards for heavy-duty on-highway trucks, and manufacturers have moved to voluntarily increase the fuel efficiency of their vehicles in advance of the effective dates of those regulations. Within these regulations, EPA recognizes the impact of weight savings on fuel efficiency and GHG emissions. In addition, manufacturers have developed innovative new DEF dosing strategies to reduce CO
The commenters elaborated that:
To meet the next round of GHG reduction requirements, some manufacturers expect to increase DEF dosing by as much as 100% over current levels. These increased levels of dosing will require a corresponding increase in DEF tank capacity and size to meet the existing 2:1 tank ratio requirements. For example, increasing DEF dosing by 40% on average would require an increase in DEF tank size of approximately 40% (depending on how much extra capacity was included in the tanks used in previous model years). The shape, size and location of DEF tanks on a truck frame are constrained by a number of factors including: the need to place the tank below the filler-neck; the need for clearance from other components such as fuel tanks, battery boxes, air tanks, diesel particulate filters, and the drive axle and wheels; the need for gravity feed; body installation requirements; clear-back-of-cab requirements; weight distribution requirements; bridge formula and related axle placement issues; and fuel capacity/driving range demands.
The commenters state that another consequence of the greenhouse gas regulations is more attention to improved aerodynamics and weight reduction, which are harmed by the need for a 2:1 DEF tank size requirement. They claim that EPA should allow manufacturers to use all available options to increase fuel efficiency and meet greenhouse gas standards. They claim that the possible harm of allowing shorter maintenance intervals are minimal, given the severe negative inducements associated with failure to replenish the DEF tank.
EPA is not proposing to allow a 1:1 DEF maintenance interval across the heavy-duty engine class at this time. EPA notes that manufacturers have been meeting a 2:1 ratio for DEF tank size for the past two years and the commenters have not provided sufficient evidence that this ratio will be infeasible in the future. Moreover, the commenters have not shown that any change in the maintenance interval is necessary or appropriate throughout the heavy-duty engine category, rather than for particular applications, or that a refill interval as low as 1:1, rather than 1.8:1 or 1.5:1, is necessary or appropriate. The feasibility of the greenhouse gas standards was not predicated on substantial increases in DEF dosing rate, although that was a possible method of compliance, and the commenters have not shown that the increase in tank size
EPA also notes that the regulations allow any manufacturer to petition EPA under the “paragraph (b)(7) process” for a shorter maintenance interval than that promulgated for DEF refills if the manufacturer can show that a shorter interval is technologically necessary for the particular engine or vehicle configuration being certified.
EPA is also proposing to incorporate appropriate maintenance intervals for the scheduled maintenance of DEF refills on SCR-equipped NRCI engines. We are proposing the same interval (i.e., 1:1 ratio) as was approved under the § 1039.125(a)(5) process.
EPA believes it appropriate to evaluate the DEF refill rates by taking into consideration the space and weight constraints typically involved with the range of nonroad compression-ignition engines using SCR systems, including safety and impacts of weight and dosing rates on greenhouse gas emissions and fuel economy. EPA also believes it appropriate to take into consideration the likelihood that the maintenance of DEF refills will be performed by the owner or operator.
EPA knows of no SCR technology for NRCI engines that is yet capable of attaining longer operation (generally beyond one tank full of diesel) without a DEF refill. As noted by the requests received for a shorter interval, there are significant space and weight constraints associated with increasing the DEF tank size in order to accommodate a 2:1 refill ratio. EPA believes it appropriate to take into consideration the need for locating the DEF tank in close proximity to the fuel tank and the remainder of the SCR system, as well as the increased likelihood that the DEF tank will be refilled if it becomes standard operating practice to refill it at the same time as the fuel tank. EPA believes that such nonroad equipment is similar to centrally-fueled heavy-duty on-highway vehicles and that there is a sufficient basis and a reasonable expectation that DEF tank refills will occur on a timely basis. In addition, because this maintenance is considered critical emission-related maintenance, § 1039.125 requires that manufacturers ensure that it have a reasonable likelihood of being done at the recommended intervals on in-use engines. Paragraph 1039.125(a)(1) sets forth several methods by which such demonstration can be made, including data showing that if a lack of maintenance increases emissions, it also unacceptably degrades the engine's performance. Thus, manufacturers will need to show compliance with this requirement to be certified. In the context of SCR systems and the potential of an empty DEF tank and an inoperable SCR system, EPA notes that equipment under such operating conditions are expected to shut down or idle only.
As noted previously, EPA is proposing to adopt special provisions for engines used in dedicated emergency vehicles to ensure that manufacturers are able to design and implement reliable, robust emission control systems with regeneration strategies that do not interfere with the mission of emergency vehicles. However, we are not proposing to extend this option for other engines that are not intended for emergency vehicles. Nevertheless, based on information provided to us from engine manufacturers, we have some concern that nonroad engines not normally used for emergencies may be needed in unusual emergency situations that may require very limited and temporary relief so that emission controls do not hinder the engine's performance in such emergency conditions. This section describes a flexibility that we are proposing to address this.
Our existing nonroad engine compliance regulations in 40 CFR 1068.101(b)(1)(ii) allow operators to temporarily disable or remove emission controls to address emergency situations. However, they do not necessarily allow manufacturers to design the emission controls to be disabled or removed. This has become a potential problem for modern electronically controlled engines, where many emission controls are integrated into the engine's control software. There is currently no way for an operator to selectively disable emission control software, while maintaining engine function. The proposed regulatory text would effectively extend the policy expressed in 40 CFR 1068.101(b)(1)(ii) to emission control software.
The provisions we are proposing are intended primarily to address engines used for power generation or in construction equipment. However, it is important to note that we are not proposing to limit this flexibility to such engines. For example, portable diesel-powered generators are often used to provide electrical power after natural disasters. If the generator is providing power to a medical facility, then any interruption in service could risk the lives of the patients. This is just one example of how an ordinary piece of nonroad equipment could be used in an emergency situation. Others would include bulldozers repairing a levee or a crane removing debris.
The Tier 4 standards have resulted in much of this equipment being equipped with SCR catalysts that require a reductant. The reductant is typically supplied as a urea water solution known as diesel exhaust fluid (DEF). The engines in this equipment generally include controls that limit the function of the engines if they are operated without urea. Such controls are generally call “inducements”, because they induce the operator to supply urea to the equipment. While we are confident that DEF is now widely and easily available in the United States, we are concerned that in emergency circumstances there may be a possibility of a temporary supply shortage. We believe that in such situations, temporary flexibilities may be appropriate because the possibility of risk to human life sufficiently outweighs the temporary emissions increases that may occur if SCR-equipped engines are used without DEF. As indicated below, this flexibility is very narrow and
We are proposing a new section 1039.665 that would specify provisions that allow for AECDs that are necessary to ensure proper function of engines and equipment in emergency situations. AECDs approved under this section would not be defeat devices. The section would include the following provisions:
• Manufacturers would be allowed to ask for approval at any time. Still, we would encourage manufacturers to obtain preliminary approval before submitting an application for certification. And in unusual circumstances, we could allow manufacturers to apply an approved emergency AECD to engines and equipment that have already been placed into service as a “field fix”.
• The manufacturer would be required to keep records to document requests for and use of emergency AECDs under this section and submit a report to EPA within 60 days of the end of each calendar year in which it authorizes use of the AECD
• We would approve an AECD only where we determine certain criteria are met, as described below.
We are proposing to address such AECDs as part of certification and would only authorize the certifying manufacturer to activate them.
Approval of AECDs under the proposed regulations would be based on certain general and specific criteria. A general criterion is that the AECD would need to be consistent with good engineering judgment. When used in our regulations, the phrase “good engineering judgment” has a specific meaning as described in 40 CFR 1068.5. By specifying that the AECD be consistent with good engineering judgment, we address unforeseen technical details that may arise.
We are also proposing three specific criteria that must be met. Each of these criteria is intended to ensure that any adverse environmental impacts are minimized. These criteria are:
• The AECD must be designed so that it cannot be activated without the specific permission of the certificate holder. We would specify that the AECD must require the input of a temporary code or equivalent security feature.
• The AECD must become inactive within 24 engine hours of becoming active (or other period we approve in unusual circumstances).
• The manufacturer must show that the AECD deactivate emission controls (such as inducement strategies) only to the extent necessary to address the expected emergency situation.
This allowance is intended generally to address SCR-equipped engines operating in emergency situations when DEF is unavailable. In such cases, inducement strategies could result in a loss of power of the engine which could effectively prevent the equipment from functioning. Under this provision, a manufacturer could include a dormant feature in the engine's control software that could be activated to disable inducement strategies.
We are also proposing to allow this for other types of controls, where a manufacturer can clearly demonstrate that this relief could be needed. We are requesting comment about whether we should specifically identify such other controls or leave the regulatory text more open ended.
Finally, we are requesting comment about the circumstances under which we should allow the AECD to be activated. Should emergency situations include only those circumstances where human life is at stake? Should it be allowed automatically whenever a federal disaster is declared?
EPA expects the economic effects of this proposal to be small, and to potentially have benefits that are a natural result of easing constraints.
Due to the optional and voluntary nature of this proposal, there are no direct regulatory compliance costs to engine manufacturers. To the extent manufacturers elect to develop and deploy upgrades to engines for emergency vehicles, they may voluntarily incur some degree of costs associated with the following:
• Design and testing to determine effectiveness of potential AECDs.
• Education & outreach to intermediate vehicle manufacturers and end users.
• Deployment of AECDs onto new and in-use emergency vehicles.
• Labeling costs.
EPA expects any fixed costs would be small, and any variable costs would apply only to the engines sold for installation in emergency vehicles or emergency equipment, which comprise less than one percent of the heavy-duty on-road fleet, and an even smaller fraction of the nonroad fleet. As per standard practice, manufacturers would be free to set a fair market price for any approved AECD or field modification they offer, to offset the costs incurred in its development.
Depending on the type of AECD or field modification that a manufacturer voluntarily elects to deploy, some operational costs could increase and some could decrease.
When an emergency vehicle is experiencing frequent plugging of its DPF, this increases maintenance costs for owners and warranty costs for manufacturers. Maintenance costs can include service calls for a technician-controlled regeneration, towing fees where on-site regeneration cannot be achieved, and costs to deploy reserve vehicles while the impaired vehicle is being serviced. These costs are expected to decrease with this proposal, and are discussed further below.
Manufacturers incur warranty costs when a vehicle under warranty must be returned for service. Because this proposed action would allow manufacturers the flexibility to improve the reliability of their engines, EPA expects warranty costs for emergency vehicles and engines in emergency vehicles would decrease as a result of this action.
Should an AECD be deployed that allows manual active regenerations at more frequent intervals, this could increase the total number of regenerations, exposing the DPF substrate to more frequent thermal stress and general wear & tear. However, while it is expected that the frequency of regenerations would increase, the duration of each regeneration would decrease because the total soot loading of the DPF would likely remain unchanged or be reduced due to other control strategies within the approved AECD. Because manufacturers are held to strict standards related to the warranty, maintenance and durability of these systems, EPA expects that measures will be taken to ensure that any AECD that is deployed would not decrease the ash cleaning interval or
With this proposal, manufacturers would have the flexibility to design alternate calibrations to reduce soot loading to the DPF and extend the interval between regenerations. There would also be more flexibility to enable more passive and automatic active regenerations, which both expose the DPF to less thermal stress than do manual active regenerations. In summary, EPA does not expect any warranty or maintenance costs would increase due to this proposal, and it is very likely that these would decrease. Furthermore, EPA believes that the potential for reduced warranty costs may help to offset the cost to produce and deploy any optional AECDs. Similarly, EPA believes the potential for reduced maintenance and operational costs may offset the cost to owners for obtaining requested AECDs.
Where DPF systems employ fuel dosing to enable active automatic regenerations, it is uncertain whether liberalizing the parameters for initiating regenerations would affect fuel consumption. Operators have reported that vehicles burn more fuel during regenerations, though the quantity varies among vehicles.
Where automatic active regenerations employ fuel dosing, it is uncertain whether fuel consumption would increase with an increased number of regenerations during a given operating period. If all else were to remain the same, it is likely that the duration of each automatic active regeneration may be decreased. To the extent regenerations are enabled with other means besides fuel, or demand for regenerations is reduced through recalibration, then any potential increase in fuel use from dosing would be mitigated.
As an illustration, we have estimated the additional fuel use for a truck with a dosing strategy where its regeneration interval is decreased from 25 hours to eight hours, due to the increased availability of operator-commanded regenerations. In this example, we assume a single regeneration consumes approximately half a gallon of supplemental fuel. If the vehicle has average engine operating hours of 1,200 per year, then its number of regeneration events would increase from about 50 per year to 150 per year, under the above assumptions. If the amount of supplemental fuel use remained unchanged under the new regime (a conservative assumption) then potentially the vehicle could consume an additional 50 gallons of fuel per year from the increased frequency of regenerations alone. Considering current costs of ultra low sulfur diesel fuel, this could translate to about $200 per vehicle in additional annual fuel costs.
As explained above, EPA does not believe this is a likely scenario, as the amount of fuel used per regeneration event would likely decrease with increasing frequency, and engine manufacturers would be likely to adjust combustion parameters to avoid placing additional thermal stress on the DPF. A more detailed analysis of fuel use and potential costs associated with dosing strategies is included in a memo to the docket associated with this rulemaking.
Because this proposal eases constraints on the development of robust DPF systems, the economic impacts can only improve with this action. It is presumed that the benefits to society of enabling first responders to act quickly when needed outweigh the costs to society of any temporary increase in emissions from this small segment of vehicles.
This action would codify previously published final agency actions regarding SCR maintenance intervals. No new regulatory burdens would be imposed. Rather, by codifying former decisions that were based on administrative petitions and of limited applicability, EPA is providing regulatory certainty that will allow affected manufacturers to plan their product development accordingly.
EPA expects the economic effects of this proposal to be small, and to potentially have benefits that are a natural result of easing constraints. Due to the optional and voluntary nature of this proposal, there are no direct regulatory compliance costs to engine manufacturers. To the extent manufacturers elect to develop and deploy upgrades to engines for emergency vehicles, they may voluntarily incur some degree of costs. We do not expect there to be any operator costs for this allowance, other than the potential cost associated with sending written confirmation of an emergency situation to the certificate holder. However, since this option would be activated rarely (or perhaps not at all), total costs to operators would be negligible.
We expect any environmental impacts from this proposal would be small. By promulgating these amendments, it is expected that the emissions from this segment of the heavy-duty fleet would not change significantly.
EPA estimates that on-road emergency vehicles comprise less than one percent of the national heavy-duty fleet. According to the International Council on Clean Transportation (ICCT), less than one percent of all new heavy-duty truck registrations in 2003 to 2007 were for emergency vehicles (includes class 8 fire trucks plus other class 3–8 emergency vehicles).
Due to the optional and voluntary nature of this action, it is difficult to estimate its overall emissions impact accurately. The proposed amendments offer many options to manufacturers, and the emissions impacts will depend on which options and strategies are employed, and for how many vehicles.
During both automatic active and manual active regenerations, emission rates increase for some pollutants, especially NO
As a result of this proposed action, it is possible that some engine manufacturers will submit applications for AECD's with liberalized parameters under which automatic active and/or manual active regenerations may occur, for emergency vehicles. Under these liberalized parameters, several outcomes are possible, depending on the engineering design. While the NO
In the comment letters EPA received urging swift action providing relief for emergency vehicles, it was often cited that the pollution from a structural fire is far worse than the tailpipe emissions of a fire truck. To provide some perspective on this, EPA is providing a brief discussion of PM emissions in this section.
A rough method for estimating emissions from structural fires is obtained by multiplying a national average factor of 2.3 fires per 1,000 residents by the national population, along with a PM emission factor of 10.8 lb per ton burned, and an average fuel loading of 1.1 tons burned per fire. Using these estimates, EPA calculates just under 5,000 tons of PM is emitted in the U.S. each year from structural fires. A more detailed analysis of PM emissions from structural fires in relation to PM emissions from emergency vehicles is included in a memo to the docket associated with this rulemaking.
We expect manufacturers who choose to develop optional AECDs for emergency vehicles to employ strategies that prevent the occurrence of abnormal conditions of the emission control system. Where preventive strategies alone are not demonstrated to be failsafe, EPA expects there may be instances where it is justified to provide engine exhaust backpressure relief, either mechanical or through other means. While we expect this will not be a widespread solution, there may be cases where a relief valve may be employed on a vehicle whose DPF became plugged frequently, allowing temporary emission control bypass to occur as a last resort to prevent engine failure. An example of possible PM emissions changes due to this proposal is presented in a memo to the docket associated with this rulemaking.
As described above in Section IV.C, only some control systems employ fuel dosing as a strategy to initiate active regeneration. In a memo to the docket associated with this rulemaking, EPA estimates the potential increase in fuel use due to more frequent operator-commanded regenerations with dosing at an average of about 50 gallons per year per vehicle, if other measures to reduce the need for regenerations are not taken.
EPA believes that the likelihood of emissions-related maintenance occurring in use would remain unchanged as a result of this action. Therefore, there are no anticipated adverse environmental impacts.
EPA does not expect any significant environmental effects as a result this proposal. This option would be activated rarely (or perhaps not at all) and would only affect emissions for a very short period.
EPA's clean diesel standards are already providing substantial benefits to public health and welfare and the environment through significant reductions in emissions of NO
We request comment by July 27, 2012 on all aspects of this proposal. This section describes how you can participate in this process.
We are opening a formal comment period by publishing this document. We will accept comments through July 27, 2012. If you have an interest in the program described in this document, we encourage you to comment on any aspect of this rulemaking. We request comment on various topics throughout this proposal.
Your comments will be most useful if you include appropriate and detailed supporting rationale, data, and analysis. If you disagree with parts of the proposed program, we encourage you to suggest and analyze alternate approaches to meeting the goals described in this proposal. You should send all comments, except those containing proprietary information, to our Air Docket (see
If you submit proprietary information for our consideration, you should clearly separate it from other comments by labeling it “Confidential Business Information (CBI).” You should send CBI directly to the contact person listed under
EPA is also publishing a Direct Final Rule (DFR) addressing the emergency vehicle provisions described in Section IV of this document. If we receive adverse comments on the emergency vehicle provisions in this proposal by July 9, 2012, we will publish a timely withdrawal in the
EPA is publishing the DFR to expedite the deployment of solutions that will best ensure the readiness of the nation's emergency vehicles. We request that commenters identify in your comments any portions of the emergency vehicle proposed action described in Section IV above with which you agree and support as proposed, in addition to any comments regarding suggestions for improvement or provisions with which you disagree. In the case of a comment that is otherwise unclear whether it is adverse, EPA would interpret relevant comments calling for more flexibility or less restrictions for emergency vehicles as supportive of the direct final action. In this way, the EPA will be able to adopt those elements of the DFR that are fully supported and most needed today, while considering and addressing any adverse comments received on the proposed rule, in the course of developing the final rule.
Note that Docket Number EPA–HQ–OAR–2011–1032 is being used for both the DFR and this Notice of Proposed Rulemaking (NPRM).
We will hold a public hearing at the EPA's National Vehicle and Fuels Emission Laboratory, 2565 Plymouth Road in Ann Arbor, Michigan on June 27, 2012. The hearing will start at 10:00 a.m. and continue until everyone has had a chance to speak.
If you would like to present testimony at the public hearing, we ask that you notify the contact person listed above under
We will make a tentative schedule for the order of testimony based on the notifications we receive. This schedule will be available on the morning of the hearing. In addition, we will reserve a block of time for anyone else in the audience who wants to give testimony. We will conduct the hearing informally, and technical rules of evidence won't apply. We will arrange for a written transcript of the hearing and keep the official record of the hearing open for 30 days to allow you to submit supplementary information. You may make arrangements for copies of the transcript directly with the court reporter.
This 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 Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose any new information collection burden. The proposed regulatory relief for emergency vehicles would be voluntary and optional, and the proposed revisions for engine and vehicle maintenance would merely codify existing guidelines. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business primarily engaged in shipbuilding and repairing as defined by NAICS code 336611 with 1,000 or fewer employees (based on Small Business Administration size standards); (2) a small business that is primarily engaged in freight or passenger transportation on the Great Lakes as defined by NAICS codes 483113 and 483114 with 500 or fewer employees (based on Small Business Administration size standards); (3) a small business primarily engaged in commercial and industrial machinery and equipment repair and maintenance as defined by NAICS code 811310 with annual receipts less than $7 million (based on Small Business Administration size standards); (4) 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 (5) 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 today's proposed rule on
In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.
This proposed rule provides regulatory relief related to emergency vehicles and codifies existing guidelines related to engine and vehicle maintenance. As such, we anticipate no costs and therefore no regulatory burden associated with this rule. We have concluded that this rule will not increase regulatory burden for affected small entities.
This proposal contains no Federal mandates under the regulatory provisions of Title II of the UMRA for State, local, or tribal governments. The proposal imposes no enforceable duty on any State, local or tribal governments. EPA has determined that this proposal contains no regulatory requirements that might significantly or uniquely affect small governments. The agency has determined that this proposal does not contain a Federal mandate that may result in expenditures of $100 million or more for the private sector in any one year. Manufacturers have the flexibility and will likely choose whether or not to use optional AECD's based on their strategies for complying with the applicable emissions standards. Similarly, manufacturers may choose to use DEF maintenance intervals longer than the minimums proposed in this action, and manufacturers may elect to use SCR strategies that consume lower amounts of DEF. Thus, today's proposal is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule would apply to manufacturers of heavy-duty diesel engines and not to state or local governments. 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 the agency and State and local governments, the agency specifically solicits comment on this proposed action from State and local officials.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposal will be implemented at the Federal level and would impose compliance costs only on affected engine manufacturers depending on the extent to which they take advantage of the flexibilities offered. Tribal governments would be affected only to the extent they purchase and use vehicles with regulated engines. Thus, Executive Order 13175 does not apply to this proposed rule. EPA specifically solicits additional comment on this proposed action from tribal officials.
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 EPA has 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.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5–501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This proposed 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(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials, specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority
EPA has determined that this proposed rule would not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This action is expected to increase the level of environmental protection for all affected populations because this proposed rule increases the ways that manufacturers can demonstrate compliance with heavy-duty engine standards.
Confidential business information, Imports, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Research, Warranties.
Administrative practice and procedure, Confidential business information, Motor vehicle pollution, Reporting and recordkeeping requirements.
Environmental Protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Labeling, Penalties, Reporting and recordkeeping requirements, Warranties.
For the reasons set forth in the preamble, the Environmental Protection Agency proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:
1. The authority citation for part 85 continues to read as follows:
42 U.S.C. 7401–7671q.
2. Add § 85.1716 to subpart R to read as follows:
This section describes how you may implement design changes for an emergency vehicle that has already been placed into service to ensure that the vehicle will perform properly in emergency situations. This applies for any light-duty vehicle, light-duty truck, or heavy-duty vehicle meeting the definition of
(a) You must notify us in writing of your intent to install or distribute an emergency vehicle field modification (EVFM). In some cases you may install or distribute an EVFM only with our advance approval, as specified in this section.
(b) Include in your notification a full description of the EVFM and any documentation to support your determination that the EVFM is necessary to prevent the vehicle from losing speed, torque, or power due to abnormal conditions of its emission control system, or to prevent such abnormal conditions from occurring during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, or running out of diesel exhaust fluid for engines that rely on urea-based selective catalytic reduction. Your determination must be based on an engineering evaluation or testing or both.
(c) You may need our advance approval for your EVFM, as follows:
(1) Where the proposed EVFM is identical to an AECD we approved under this part for an engine family currently in production, no approval of the proposed EVFM is necessary.
(2) Where the proposed EVFM is for an engine family currently in production but the applicable demonstration is based on an AECD we approved under this part for an engine family no longer in production, you must describe to us how your proposed EVFM differs from the approved AECD. Unless we say otherwise, your proposed EVFM is deemed approved 30 days after you notify us.
(3) If we have not approved an EVFM comparable to the one you are proposing, you must get our approval before installing or distributing it. In this case, we may request additional information to support your determination under paragraph (b) of this section, as follows:
(i) If we request additional information and you do not provide it within 30 days after we ask, we may deem that you have retracted your request for our approval; however, we may extend this deadline for submitting the additional information.
(ii) We will deny your request if we determine that the EVFM is not necessary to prevent the vehicle from losing speed, torque, or power due abnormal conditions of the emission control system, or to prevent such abnormal conditions from occurring, during operation related to emergency response.
(iii) Unless we say otherwise, your proposed EVFM is deemed approved 30 days after we acknowledge that you have provided us with all the additional information we have specified.
(4) If your proposed EVFM is deemed to be approved under paragraph (c)(2) or (3) of this section and we find later that your EVFM in fact does not meet the requirements of this section, we may require you to no longer install or distribute it.
3. The authority citation for part 86 continues to read as follows:
42 U.S.C. 7401–7671q.
4. Section 86.004–2 is amended as follows:
a. By adding a definition for “Ambulance” in alphabetical order.
b. By revising the definition for “Defeat device”.
c. By adding definitions for “Diesel exhaust fluid”, “Emergency vehicle”, and “Fire truck” in alphabetical order.
(1) Such conditions are substantially included in the applicable Federal emission test procedure for heavy-duty vehicles and heavy-duty engines described in subpart N of this part;
(2) The need for the AECD is justified in terms of protecting the vehicle against damage or accident;
(3) The AECD does not go beyond the requirements of engine starting; or
(4) The AECD applies only for engines that will be installed in
5. Section 86.004–25 is amended as follows:
a. By revising paragraph (b)(4) introductory text.
b. By adding paragraph (b)(4)(v).
c. By revising paragraph (b)(6)(i) introductory text and (b)(6)(i)(H).
d. By adding paragraph (b)(6)(i)(I).
(b) * * *
(4) For diesel-cycle heavy-duty engines, emission-related maintenance in addition to or at shorter intervals than the following specified values will not be accepted as technologically necessary, except as provided in paragraph (b)(7) of this section:
(v) For engines that use selective catalytic reduction, the replenishment of diesel exhaust fluid shall occur according to the following schedule:
(A) For heavy-duty engines in vocational vehicles such as dump trucks, concrete mixers, refuse trucks and similar applications that are typically centrally fueled, at an interval, in miles or hours of vehicle operation, that is no less than the vehicle's fuel capacity.
(B) For all other heavy-duty engines, at an interval, in miles or hours of vehicle operation, that is no less than twice the vehicle's fuel capacity.
(6)(i) The following components are defined as critical emission-related components:
(H) Components comprising the selective catalytic reduction system (including diesel exhaust fluid tank).
(I) Any other component whose primary purpose is to reduce emissions or whose failure would commonly increase emissions of any regulated pollutant without significantly degrading engine performance.
6. Section 86.0004–28 is amended by revising paragraph (i) introductory text to read as follows:
(i) Emission results from heavy-duty engines equipped with exhaust aftertreatment may need to be adjusted to account for regeneration events. This provision only applies for engines equipped with emission controls that are regenerated on an infrequent basis. For the purpose of this paragraph (i), the term “regeneration” means an event during which emission levels change while the aftertreatment performance is being restored by design. Examples of regenerations are increasing exhaust gas temperature to remove sulfur from an adsorber or increasing exhaust gas temperature to oxidize PM in a trap. For the purpose of this paragraph (i), the term “infrequent” means having an expected frequency of less than once per transient test cycle. Calculation and use of adjustment factors are described in paragraphs (i)(1) through (5) of this section. If your engine family includes engines with one or more AECDs for emergency vehicle applications approved under paragraph (4) of the definition of “defeat device” in § 86.004–2, do not consider additional regenerations resulting from those AECDs when calculating emission factors or frequencies under this paragraph (i).
7. Section 86.095–35 is amended by revising paragraph (a)(3)(iii)(O) to read as follows:
(a) * * *
(3) * * *
(iii) * * *
(O) For engines with one or more approved AECDs for emergency vehicle applications under paragraph (4) of the definition of “defeat device” in § 86.004–2, the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY VEHICLES ONLY.”
8. Section 86.131–00 is amended by adding paragraph (g) to read as follows:
(g) You may disable any AECDs that have been approved solely for emergency vehicle applications under paragraph (4) of the definition of “defeat device” in § 86.004–2. The emission standards do not apply when any of these AECDs are active.
9. Section 86.1305–2010 is amended by adding paragraph (i) to read as follows:
(i) You may disable any AECDs that have been approved solely for emergency vehicle applications under paragraph (4) of the definition of “defeat device” in § 86.004–2. The emission standards do not apply when any of these AECDs are active.
10. Section 86.1370–2007 is amended by adding paragraph (h) to read as follows:
(h)
11. Section 86.1803–01 is amended as follows:
a. By adding a definition for “Ambulance” in alphabetical order.
b. By revising the definition for “Defeat device”.
c. By adding definitions for “Diesel exhaust fluid”, “Emergency vehicle”, and “Fire truck” in alphabetical order.
(1) A driver's compartment.
(2) A patient compartment to accommodate an emergency medical services provider and one patient located on the primary cot so positioned that the primary patient can be given intensive life-support during transit.
(3) Equipment and supplies for emergency care at the scene as well as during transport.
(4) Safety, comfort, and avoidance of aggravation of the patient's injury or illness.
(5) Two-way radio communication.
(6) Audible and visual traffic warning devices.
(1) Such conditions are substantially included in the Federal emission test procedure;
(2) The need for the AECD is justified in terms of protecting the vehicle against damage or accident;
(3) The AECD does not go beyond the requirements of engine starting; or
(4) The AECD applies only for
12. Section 86.1807–01 is amended by adding paragraphs (h) and (i) to read as follows:
(h) Vehicles powered by model year 2007 through 2013 diesel-fueled engines must include permanent readily visible labels on the dashboard (or instrument panel) and near all fuel inlets that state “Use Ultra Low Sulfur Diesel Fuel Only” or “Ultra Low Sulfur Diesel Fuel Only”.
(i) For vehicles with one or more approved AECDs for emergency vehicles under paragraph (4) of the definition of “defeat device” in § 86.1803, include the following statement on the emission control information label: “THIS VEHICLE HAS A LIMITED EXEMPTION AS AN EMERGENCY VEHICLE.”
13. Subpart S is amended by removing § 86.1807–07.
14. Section 86.1834–01 is amended as follows:
a. By revising paragraph the introductory text of (b)(4).
b. By adding paragraph (b)(4)(iii).
c. By revising paragraph (b)(6)(i)(H).
d. By adding paragraph (b)(6)(i)(I).
(b) * * *
(4) For diesel-cycle vehicles, emission-related maintenance in addition to, or at shorter intervals than the following will not be accepted as technologically necessary, except as provided in paragraph (b)(7) of this section:
(iii) For vehicles that use selective catalytic reduction, the replenishment of diesel exhaust fluid shall occur at an interval, in miles or hours of vehicle operation, that is no less than the scheduled oil change interval.
(6) * * *
(i) * * *
(H) Components comprising the selective catalytic reduction system (including diesel exhaust fluid tank).
(I) Any other component whose primary purpose is to reduce emissions or whose failure would commonly increase emissions of any regulated pollutant without significantly degrading engine performance.
15. Section 86.1840–01 is amended by revising paragraph (c) to read as follows:
(c) Manufacturers of vehicles equipped with periodically regenerating aftertreatment devices must propose a procedure for testing and certifying such vehicles, including SFTP testing, for the review and approval of the Administrator. The manufacturer must submit its proposal before it begins any service accumulation or emission testing. The manufacturer must provide with its submittal sufficient documentation and data for the Administrator to fully evaluate the operation of the aftertreatment devices and the proposed certification and testing procedure.
16. The authority citation for part 1039 continues to read as follows:
42 U.S.C. 7401–7671q.
17. Section 1039.115 is amended by adding paragraphs (g)(4) and (5) to read as follows:
(g) * * *
(4) The auxiliary emission control device applies only for engines that will be installed in emergency equipment and the need is justified in terms of preventing the equipment from losing speed or power due to abnormal conditions of the emission control system, or in terms of preventing such abnormal conditions from occurring, during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, and running out of diesel exhaust fluid for engines that rely on urea-based selective catalytic reduction. The emission standards do not apply when any AECDs approved under this paragraph (g)(4) are active.
(5) The auxiliary emission control device operates only in emergency situations as defined in § 1039.665 and meets all of the requirements of that section, and you meet all of the requirements of that section.
18. Section 1039.125 is amended by adding paragraphs (a)(2)(iii) and (a)(3)(iii) to read as follows:
(a) * * *
(2) * * *
(iii) For SCR systems, the minimum interval for replenishing the diesel exhaust fluid is the number of engine operating hours necessary to consume a full tank of fuel based on normal usage starting from full fuel capacity for the equipment.
(3) * * *
(iii) For SCR systems, the minimum interval for replenishing the diesel exhaust fluid is the number of engine operating hours necessary to consume a full tank of fuel based on normal usage starting from full fuel capacity for the equipment.
19. Section 1039.130 is amended by revising paragraph (b)(3) to read as follows:
(b) * * *
(3) Describe the instructions needed to properly install the exhaust system and any other components. Include instructions consistent with the requirements of § 1039.205(u). Also describe how to properly size diesel
20. Section 1039.135 is amended by adding paragraph (c)(15) to read as follows:
(c) * * *
(15) For engines with one or more approved auxiliary emission control devices for emergency equipment applications under § 1039.115(g)(4), the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY EQUIPMENT ONLY.”
21. Section 1039.501 is amended by adding paragraph (g) to read as follows:
(g) You may disable any AECDs that have been approved solely for emergency equipment applications under § 1039.115(g)(4).
22. Section 1039.525 is amended by revising the introductory text to read as follows:
This section describes how to adjust emission results from engines using aftertreatment technology with infrequent regeneration events. For this section, “regeneration” means an intended event during which emission levels change while the system restores aftertreatment performance. For example, exhaust gas temperatures may increase temporarily to remove sulfur from adsorbers or to oxidize accumulated particulate matter in a trap. For this section, “infrequent” refers to regeneration events that are expected to occur on average less than once over the applicable transient duty cycle or ramped-modal cycle, or on average less than once per typical mode in a discrete-mode test. If your engine family includes engines with one or more AECDs for emergency equipment applications approved under § 1039.115(g)(4), do not consider additional regenerations resulting from those AECDs when calculating emission factors or frequencies under this section.
23. Add § 1039.665 to subpart G to read as follows:
This section specifies provisions that allow for AECDs that are necessary to ensure proper functioning of engines and equipment regulated under this part in emergency situations. For purposes of this section, an emergency situation is one in which the functioning (or malfunctioning) of emission controls poses a significant risk to human life. For example, a situation in which a feature of emission controls inhibits the performance of an engine being used to rescue a person from a life-threatening situation would be an emergency situation. AECDs approved under this section are not defeat devices.
(a) Manufacturers may ask for approval under this section at any time; however, we encourage manufacturers to obtain preliminary approval before submitting an application for certification. We may allow manufacturers to apply an approved emergency AECD to engines and equipment that have already been placed into service.
(b) We will approve an AECD where we determine the following criteria are met:
(1) Activation of the AECD cannot occur without the specific permission of the certificate holder, and must require the input of a temporary code or equivalent security feature.
(2) The AECD must become inactive within 24 engine hours of becoming active.
(3) The AECD may deactivate emission controls as necessary to address the emergency situation. For purposes of this paragraph (b)(3), inducement strategies related to operating SCR-equipped engines without reductant are considered to be emission controls.
(4) The AECD's design is consistent with good engineering judgment.
(c) The certificate holder must keep records to document requests for and use of emergency AECDs under this section.
(1) The operator (or other person responsible for the engine/equipment) must send a written request to the certificate holder prior to use, or a written confirmation of a verbal request within 30 days of making the request, including a description of the emergency situation, the reason for the use of the AECD, and a signature from an official acknowledging the conditions of the emergency situation (such as a county sheriff, fire marshal, or hospital administrator). Such requests are deemed to be submissions to EPA. Where written confirmation is not submitted by the operator, we will deem operation of the engine with an activated emergency AECD to be a violation of 40 CFR 1068.101(b)(1).
(2) If the operator does not submit the applicable confirmation within 30 days, the certificate holder must send written notification to the operator that failure to submit written confirmation may subject the operator to penalties under 40 CFR 1068.101.
(3) Within 60 days of the end of each calendar year in which the certificate holder authorizes use of the AECD, the certificate holder must send a report to the Designated Compliance Officer to summarize such use, including a description of the emergency situation precipitating each use, and copies of the written confirmation provided by operators (or statements that the operator did not provide confirmation). We may require more frequent reporting if we find that the certificate holder does not collect or attempt to collect written confirmation for each situation.
(d) We may set other reasonable conditions to ensure that this provision is not used to circumvent the emission standards of this part.
24. Add § 1039.670 to subpart G to read as follows:
This section describes how you may implement design changes for emergency equipment that has already been placed into service to ensure that the equipment will perform properly in emergency situations.
(a) You must notify us in writing of your intent to install or distribute an emergency equipment field modification (EEFM). In some cases you may install or distribute an EEFM only with our advance approval, as specified in this section.
(b) Include in your notification a full description of the EEFM and any documentation to support your determination that the EEFM is necessary to prevent the equipment from losing speed, torque, or power due to abnormal conditions of its emission control system, or to prevent such abnormal conditions from occurring during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, or running out of diesel exhaust fluid (DEF) for engines that rely on urea-based selective catalytic reduction. Your determination
(c) You may need our advance approval for your EEFM, as follows:
(1) Where the proposed EEFM is identical to an AECD we approved under this part for an engine family currently in production, no approval of the proposed EEFM is necessary.
(2) Where the proposed EEFM is for an engine family currently in production but the applicable demonstration is based on an AECD we approved under this part for an engine family no longer in production, you must describe to us how your proposed EEFM differs from the approved AECD. Unless we say otherwise, your proposed EEFM is deemed approved 30 days after you notify us.
(3) If we have not approved an EEFM comparable to the one you are proposing, you must get our approval before installing or distributing it. In this case, we may request additional information to support your determination under paragraph (b) of this section, as follows:
(i) If we request additional information and you do not provide it within 30 days after we ask, we may deem that you have retracted your request for our approval; however, we may extend this deadline for submitting the additional information.
(ii) We will deny your request if we determine that the EEFM is not necessary to prevent the equipment from losing speed, torque, or power due abnormal conditions of the emission control system, or to prevent such abnormal conditions from occurring, during operation related to emergency response.
(iii) Unless we say otherwise, your proposed EEFM is deemed approved 30 days after we acknowledge that you have provided us with all the additional information we have specified.
(4) If your proposed EEFM is deemed to be approved under paragraph (c)(2) or (3) of this section and we find later that your EEFM in fact does not meet the requirements of this section, we may require you to no longer install or distribute it.
25. Section 1039.801 is amended by adding definitions for “Diesel exhaust fluid” and “Emergency equipment” in alphabetical order to read as follows:
(1) Specialized vehicles used to perform aircraft rescue and fire-fighting functions at airports, with particular emphasis on saving lives and reducing injuries coincident with aircraft fires following impact or aircraft ground fires.
(2) Wildland fire apparatus, which includes any apparatus equipped with a slip-on fire-fighting module, designed primarily to support wildland fire suppression operations.
26. Section 1039.805 is amended by adding abbreviations for “DEF”, “EEFM”, “ISO”, and “SCR” in alphabetical order to read as follows:
DEF Diesel exhaust fluid.
EEFM Emergency equipment field modification.
ISO International Organization for Standardization (see
SCR Selective catalytic reduction.