Agricultural Research Service
Forest Service
Rural Business-Cooperative Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Navy Department
Pipeline and Hazardous Materials Safety Administration
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Drug Enforcement Administration
Parole Commission
Employment and Training Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Internal Revenue 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.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in September 2012. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective September 1, 2012.
Catherine B. Klion (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for September 2012.
The September 2012 interest assumptions under the benefit payments regulation will be 0.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for August 2012, these interest assumptions represent a decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during September 2012, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a safety zone for an annual fireworks event in the Captain of the Port Detroit zone from 9:15 p.m. to 10 p.m. on August 18, 2012. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after fireworks events. During the aforementioned period, the Coast Guard will enforce restrictions upon, and control movement of, vessels in a specified area immediately prior to, during, and immediately after fireworks events. During the enforcement period, no person or vessel may enter the safety zone without permission of the Captain of the Port.
The regulations in 33 CFR 165.941 will be enforced from 9:15 p.m. to 10 p.m. on August 18, 2012.
If you have questions on this notice, call or email LT Adrian Palomeque, Prevention, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; telephone (313) 568-9508, email
The Coast Guard will enforce the safety zone listed in 33 CFR 165.941, Safety Zones; Annual Fireworks Events in the Captain of the Port Detroit Zone, at the following date and times for the following event:
(1)
Under the provisions of 33 CFR 165.23, entry into, transiting, or anchoring within this safety zone during the enforcement period is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. Vessels that wish to transit through the safety zone may request permission from the Captain of the Port Detroit. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM. The Coast Guard will give notice to the public via Local Notice to Mariners and VHF radio broadcasts that the regulation is in effect.
This notice is issued under authority of 33 CFR 165.23 and 5 U.S.C. 552(a). If the Captain of the Port determines that this safety zone need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the safety zone.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone encompassing a portion of the Duluth Harbor Basin, Northern Section, including the Duluth Entry. This safety zone is intended to help protect participants, event safety personnel, boaters and spectators during the Superior Man Triathlon.
This rule is effective from 6 a.m. to 8:30 a.m. on August 26, 2012.
Documents mentioned in this preamble are part of docket [USCG-2012-0729]. 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 Lieutenant Judson A Coleman, Marine Safety Unit Duluth U.S. Coast Guard; telephone (218) 720-5286 ext 111, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect participants, spectators, and vessels from the hazards associated with the Superior Man Triathlon, which are discussed further below.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On August 26, 2012, the inaugural Superior Man Triathlon will occur along the Bay of Lake Superior. The 1.2 mile swim leg of the triathlon will travel from the Vista Fleet to the Bayfront Festival Park. The Captain of the Port Duluth has determined that the swim leg of the triathlon poses a danger to the boating public. Thus, pursuant to the authority in 33 U.S.C. 1231 and 33 CFR 1.05-1(f), the Captain of the Port Duluth is establishing a temporary safety zone to protect participants, event safety personnel, boaters, and spectators during the Superior Man Triathlon.
For the reasons stated in the preceding paragraph, the Captain of the Port is establishing a temporary safety zone. This temporary safety zone will encompass all waters of Superior Bay, including the Duluth Entry encompassed in an imaginary line beginning at point 46 46′36.1236″ N 092 06′06.987″ W, running southeast to 46 46′32.7534″ N 092 06′01.7382″ W, running northeast to 46 46′45.9228″ N 092 05′45.1818″ W, running northwest to 46 46′49.4718″ N 092 05′49.349″ W and finally running southwest to the original point.
This safety zone will be in effect and enforced on August 26, 2012 from 6 a.m. to 8:30 a.m.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This safety is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small, will be enforced for only two and a half hours, and is expected to have no impact on commercial vessel traffic.
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 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.
(1) This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Duluth Harbor Basin, Northern Section from 6 a.m. to 8:30 a.m. on August 26, 2012.
(2) This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone will be in effect, and thus subject to enforcement, for only two and a half hours early in the day. Vessel traffic may be allowed to pass through the zone with the permission of the Captain of the Port. Before the enforcement of the zone, the Coast Guard intends on issuing local Broadcast Notice to Mariners so that mariners can plan accordingly.
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 Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
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 environment. This rule involves establishment of a safety zone, and, therefore, it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping, Security measure, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Marine Safety Unit Duluth or his designated representative.
(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative will be aboard either a Coast Guard or Coast Guard auxiliary vessel. The Captain of the Port representative may be contacted via VHF channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Marine Safety Unit Duluth or his on-scene representative to request permission to do so. Vessel operators must comply with all directions given to them by the Captain of the Port, Marine Safety Unit Duluth or his on-scene representative.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 25 chemical substances which were the subject of premanufacture notices (PMNs). Fourteen of these chemical substances are subject to TSCA section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture, import, or process any of these 25 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This rule is effective on October 15, 2012. For purposes of judicial
Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before September 14, 2012 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0450, by one of the following methods:
•
•
•
You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this rule. Potentially affected entities may include, but are not limited to:
• Manufacturers, importers, or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture, import, or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 721.5.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 25 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 25 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or, for non-section 5(e) SNURs, the basis for the SNUR (i.e., SNURs without TSCA section 5(e) consent orders).
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture and importation volume) and other uses designated in this rule may be claimed as CBI. Unit IX. discusses a procedure companies may use to ascertain whether a proposed use constitutes a significant new use.
This rule includes 14 PMN substances (P-10-405, P-10-485, P-11-48, P-11-63, P-11-160, P-11-181, P-11-203, P-11-247, P-11-384, P-11-557, P-11-646, P-12-30, P-12-31, and P-12-32) that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “5(e) SNURs” on these PMN substances are promulgated pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
This rule also includes SNURs on 11 PMN substances (P-11-411, P-11-412, P-11-413, P-11-414, P-12-35, P-12-87, P-12-149, P-12-167, P-12-182, P-12-260, and P-12-275) that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “non-5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all non-5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.
1. Manufacture of the PMN substance (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. Manufacture of the PMN substance at an annual manufacturing and import volume not to exceed the confidential production volume stated in the consent order.
3. Submission of certain testing prior to exceeding the two confidential production volume limits specified in the consent order.
4. Disposal of manufacturing wastes by incineration.
5. Releases to surface waters not to exceed 50 ppb for the specific processing and use streams identified in the consent order.
6. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a Material Safety Data Sheet (“MSDS”), within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Monitoring of the effluent waste water stream during manufacture in addition to the requirements of any existing NPDES permit. Data will be collected on the confidential analytes specified in the consent order and submitted to the Agency quarterly.
2. Manufacture of the PMN substances (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
3. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture of the PMN substances (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. No use of the PMN substance in consumer products with spray applications.
3. Submission of certain fate testing prior to exceeding the confidential production volume limit specified in the consent order.
4. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture of the PMN substance (a) according to the chemical composition section of the consent order, including analyzing and reporting to EPA the average number molecular weight at each manufacturing facility at the time of initial commencement and annually thereafter, and (b) where the mean number of moles of each PPO unit must be greater than or equal to 5.
2. Manufacture of the PMN substance at an annual manufacturing and import volume not to exceed the confidential production volume limit stated in the consent order.
3. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture of the PMN substance (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. Manufacture of the PMN substance at an annual manufacturing and import volume not to exceed the confidential production volume stated in the consent order.
3. No use of the PMN substance in consumer products with spray applications.
4. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Monitoring of the effluent waste water stream during manufacture in addition to the requirements of any existing NPDES permit. Data will be collected on the confidential analytes specified in the consent order and submitted to the Agency quarterly.
2. Manufacture of the PMN substances (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA, and (b) within the maximum established levels of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Domestic manufacture.
2. Use of the substance other than as described in the PMN.
3. Use in a consumer product.
4. Processing or use of the substance in a solid form.
5. Manufacturing, processing, or use of the PMN substance without an appropriate material safety data sheet that warns to not release to water.
6. Any use of the substance resulting in surface water release.
Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for 14 of the 25 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to § 721.160 (see Unit II.).
In the other 11 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture, import, or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers, importers, or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers, importers, and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
EPA is issuing these SNURs as a direct final rule, as described in § 721.160(c)(3) and § 721.170(d)(4). In accordance with § 721.160(c)(3)(ii) and § 721.170(d)(4)(i)(B), the effective date of this rule is October 15, 2012 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before September 14, 2012.
If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before September 14, 2012, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
Significant new use designations for a chemical substance are legally established as of the date of publication of this direct final rule August 15, 2012.
To establish a significant “new” use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. TSCA section 5(e) consent orders have been issued for 14 chemical substances and the PMN
As discussed in the April 24, 1990 SNUR, EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of this direct final rule rather than as of the effective date of the rule. If uses begun after publication were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements because a person could defeat the SNUR by initiating the significant new use before the rule became effective, and then argue that the use was ongoing before the effective date of the rule. Thus, persons who begin commercial manufacture, import, or processing of the chemical substances regulated through this SNUR will have to cease any such activity before the effective date of this rule. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including any extensions expires.
EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person meets the conditions of advance compliance under § 721.45(h), the person is considered exempt from the requirements of the SNUR.
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for non-5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for several of the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) consent orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) consent orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture, import, or processing.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1).
Under these procedures a manufacturer, importer, or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer, importer, or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2012-0450.
This rule establishes SNURs for several new chemical substances that were the subject of PMNs and, in some cases, TSCA section 5(e) consent orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).
According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUN submitted by any small entity would not cost significantly more than $8300. A copy of that certification is available in the docket for this rule.
This rule is within the scope of the February 18, 2012, certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8300.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this rule. As such, EPA has determined that this rule does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action will not have a substantial direct effect on 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, entitled “Federalism” (64 FR 43255, August 10, 1999).
This rule does not have Tribal implications because it is not expected to have substantial direct effects on
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the company becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a) Chemical substances and significant new uses subject to reporting. (1) The chemical substance identified generically as alkyl methacrylates, polymer with substituted carbomonocycle, hydroxymethyl acrylamide and fluorinatedalkyl acrylate (PMN P-10-485) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a) Chemical substances and significant new uses subject to reporting. (1) The chemical substance identified generically as diethylene glycol, polymer with diisocyanatoalkane, polyethylene glycol monomethyl ether- and fluorinatedalkanol-blocked (PMN P-11-48) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as perfluoroalkylethyl methacrylate copolymer with hydroxymethyl acrylamide, vinyl chloride and long chain fatty alkyl acrylate (PMN P-11-247) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as brominated aliphatic alcohol (PMN P-12-260) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as phosphonium, tributyltetradecyl-, chloride (1:1) (PMN P-12-275; CAS No. 81741-28-8) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to promulgate a Reservation-specific Federal Implementation Plan in order to regulate emissions from oil and natural gas production facilities located on the Fort Berthold Indian Reservation located in North Dakota. The Federal Implementation Plan includes basic air quality regulations for the protection of communities in and adjacent to the Fort Berthold Indian Reservation. The Federal Implementation Plan requires owners and operators of oil and natural gas production facilities to reduce emissions of volatile organic compounds emanating from well completions, recompletions, and production and storage operations. This Federal Implementation Plan will be implemented by EPA, or a delegated Tribal Authority, until replaced by a Tribal Implementation Plan. EPA is proposing a Reservation-specific Federal Implementation Plan concurrently with this final rule.
This rule is effective in the CFR on August 15, 2012. This rule is effective with actual notice by EPA to the owners and operators for purposes of enforcement beginning at 5 p.m. (eastern daylight time) on August 3, 2012.
Deirdre Rothery, U. S. Environmental Protection Agency, Region 8, Air Program, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6431,
Throughout this document, “we,” “us” and “our” refer to the EPA.
For the purpose of this document, we are giving meaning to certain words or initials as follows:
In today's action, we are promulgating a Reservation-specific Federal Implementation Plan (FIP or rule) to establish enforceable control requirements for reducing volatile organic compound (VOC) emissions from oil and natural gas production activities on the Fort Berthold Indian Reservation (FBIR) in North Dakota. Specifically, we are issuing this rule to require owners and operators of oil and natural gas production facilities producing from the Bakken Pool to reduce emissions of VOCs emanating from well completions, recompletions, and production and storage operations. As explained in more detail in Section III, promulgating these Federal regulations addresses an important initial step to fill a regulatory gap with regard to controlling VOC emissions from oil and natural gas operations on the FBIR. There is no other Federal rule, including the recently finalized New Source Performance Standard (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Oil and Gas Sector (NSPS OOOO and NESHAP HH), that fills this gap for the particular geologic formations that exist on the FBIR. Therefore, this rule is necessary to level the playing field, and provide the public on the FBIR the same air quality protections as the public outside the FBIR. In addition, owners and operators of oil and natural gas operations on the FBIR are provided the same benefits that owners and operators of oil and natural gas operations off the Reservation are provided by the North Dakota Department of Health (NDDoH) regulations and North Dakota Industrial Commission (NDIC) regulations in terms of effectively limiting potential to emit (PTE).
EPA is issuing this action as a final rule. As explained in Section III., the final rule requires owners and operators of oil and natural gas production facilities on the FBIR to reduce emissions of VOC for specific types of equipment. This final rule will take effect promptly. It will be effective in the CFR on August 15, 2012. It will also be effective, with actual notice by EPA to the owners and operators, for purposes of enforcement beginning at 5 p.m. (eastern daylight time) on August 3, 2012. This final rule is also time-limited. It will be effective only until the date that EPA promulgates a final rule based on its proposal for a Reservation-specific FIP to regulate emissions from oil and natural gas production facilities located on the FBIR and that final rule takes effect. EPA is proposing a Reservation-specific FIP concurrently with this final rule. As explained in detail below, EPA finds that compelling circumstances warrant the promulgation of this final rule.
A final rule is effective with actual notice upon signature by the EPA without an opportunity for public comment. Under APA section 553, a Federal agency generally must provide for public notice and comment prior to finalizing an agency rule. However, this obligation is excused, under APA section 553(b)(3)(B), “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” While the good cause exception is to be narrowly construed,
A brief explanation of the circumstances is helpful to understand why Notice and comment here would be both contrary to the public interest and impracticable and therefore why there is good cause to implement this final rule while the agency conducts a notice and comment rulemaking for the permanent rule. The need to address VOC emissions from coproduced natural gas from oil and natural gas production sources on the FBIR was first brought to EPA's attention approximately 12 months ago, following publication of the Review of New Sources and Modifications in Indian Country or Federal Tribal NSR Rule, promulgated on July 1, 2011, at 40 CFR 49.151 (
In August 2011, EPA and the operators entered into consent agreement final orders (CAFOs), which established control requirements that restricted emissions from the oil and natural gas production facilities subject to those agreements to below major source thresholds and allowed the
In late August 2011, the EPA Region 8 initiated a process to develop, propose and issue permits to the hundreds of sources on the FBIR (both existing and proposed new wells) and to develop a FIP. At that time, EPA lacked detailed information to develop permits (
In late August 2011, the EPA Region 8 air permit and enforcement programs hosted a Fort Berthold Oil Production Minor NSR Permitting Process Meeting with the oil producers. Representatives from the MHA Nation were invited and attended in person and by phone. Discussions included the anticipated permitting timeline for permit applications submitted by the oil producers. Between August 23 and September 1, 2011, a draft model synthetic minor permit was sent by EPA to the meeting attendees and the Tribes in preparation for the next meeting on September 1, 2011. Then, on September 1, 2011, Region 8 hosted a permitting workshop. Representatives from the various oil producers and the MHA Nation were invited and attended. Representatives of the North Dakota Dept. of Health also participated by phone. The minor NSR permitting process was discussed, as well as questions that the companies submitted ahead of time. The group began discussions on the draft model permit and set up a workshop specifically to delve into the specific permit conditions for the following week. On September 7 and 8, 2011, EPA hosted a two-day follow-up permitting workshop. All previous meeting attendees were invited, including the MHA Nation. Participants included the oil producers and their consultants. North Dakota Department of Health representatives were also on the phone. At this meeting the group went through the draft model permit and discussed the proposed conditions and appropriate edits. Also discussed was what would constitute a complete application (administrative and technical) and the various methods of PTE calculation proposed by the companies in attendance. The EPA Region 8 hosted an additional meeting on November 30, 2011 to discuss the revised example permit, and representatives from the various oil producers and the MHA Nation were invited and attended.
We initially planned to issue all of the necessary permits before August 26, 2012, the earliest expiration date of the CAFOs. However, in May 2012, the true extent of the significant workload associated with developing and finalizing permits for more than 600 existing and new oil and natural gas production facilities became apparent. It became clear that, due to the extraordinary number of permits that needed to be issued, the need to tailor each of those permits to comport with the information in the permit application and the short timeframe remaining to complete those tasks, it would not be possible to issue all, or even a significant portion of, the final permits by August 26, 2012. Moreover, given the rapid pace of oil and gas development on the FBIR, there are likely numerous additional sources that will each need a permit in addition to sources EPA is aware of at this time. We therefore determined that the only way to ameliorate the situation in a timely manner was through this rulemaking action. We contemplated developing the FIP in addition to issuing the individual permits, but determined that promulgating the FIP should be our top priority once we realized that we could not issue all of the necessary permits in a timely manner.
Key safety provisions of the final rule require either collection and high efficiency flaring (combustion) of coproduced natural gas or that the well(s) be connected to a natural gas gathering line so that coproduced natural gas can be sold or used for another beneficial purpose. Given the accelerated development in this area and the nature of the oil and gas extracted, these requirements are necessary for both safety and protection of public health from exposure to air pollution and will avoid fire hazards and protect the public from hazardous conditions. Specifically, the requirements further a number of important goals in that regard. First, as discussed in Section III.C., VOC emissions from the natural gas that is co-produced with oil extracted from the formations are generally greater than such emissions from activities in other oil bearing formations, due to the characteristics of the produced oil. The FIP requirements for owners and operators of the oil and natural gas production facilities to reduce emissions of VOCs emanating from well completions, recompletions and production and storage operations will significantly reduce VOC emissions thereby ensuring that public health and the environment are protected. Second, the rule will result in immediate reductions in fire risks and improvements in air quality as a result of control of emissions from both new and existing oil and gas operations. Accordingly, as a result of the unique characteristics of the formations at issue, immediate application of the FIP requirements to both new and existing oil and natural gas operations is necessary to ensure that public health and the environment, continue to be protected once consent agreement final orders (CAFOs) with EPA expire.
The requirements of the FIP also serve to minimize regulatory burden in a number of ways. This rule ensures that ongoing oil and gas operations (including modifications), and new operations, can occur uninterrupted in a manner consistent with the Clean Air Act (CAA), thus protecting the economic interest of both the companies and Tribes involved and the local communities. The oil and natural gas production companies operating on the FBIR entered into CAFOs with EPA which allowed them to continue existing operations and begin new ones without first complying with major source prevention of significant deterioration (PSD) new source review (NSR) requirements if applicable, which can be a very lengthy and resource-intensive process. These CAFOs are further discussed in Section III.G. The CAFOs, which contain emissions control and other requirements that are consistent with those in the rule adopted today, have been in place since August 2011 and will expire beginning on August 26, 2012,
As a result, without this final rule there will be a mixture of circumstances that will increase potential threats to human health and the environment while simultaneously impeding oil and gas development. This is because of the
In summary, this rule serves the necessary function of ensuring that a regulation is in place to control emissions of VOCs by these sources. These provisions contain legally and practicably enforceable requirements to use control measures to reduce VOC emissions such that those reductions can then be considered in calculating a source's PTE. In most cases, consideration of these emission reductions in calculating a source's PTE VOCs will result in a PTE that is below the regulatory threshold so that the source will not face a long delay in its ability to continue to operate, construct or modify. The public interest would certainly be hindered if EPA did not act now to ensure that these important public health protections are in place and that economic progress is not impeded by a lack of regulations controlling VOC emissions.
Finally, this rule is important in that while not identical to, the rule is consistent with regulations approved into North Dakota's SIP
The good cause exception also applies here because of the impracticability of notice and comment. EPA initially did not recognize the sheer magnitude of the volume of permit applications that it would need to process in a short time period to avoid economic disruption on the Reservation. Now that it fully comprehends the enormity of the task, EPA has determined that it would be unable to timely process more than 600 permit applications, specified to be submitted as part of the CAFOs between EPA and the oil and natural gas owners and operators by August 2012. Because of our inability to process these permits, and because of lateness at which we became fully aware of the full scope of the burden, EPA thus has had insufficient time to seek public comment before acting on the rule promulgated today.
While we have determined that notice and comment are both contrary to the public interest and impracticable, we note that the public has had several opportunities to learn about, and even comment on, the substantive requirements contained in this interim rule. The substance of many provisions in the final rule are similar to the requirements contained in the six permits for individual oil and gas production facilities on the FBIR that EPA proposed earlier this year. We received comments from the public and the sources on those proposed permits and we have taken those comments into consideration in developing the FIP requirements. The substantive requirements of the FIP are also similar to the conditions in the CAFOs under which the oil and natural gas production sources have been operating for nearly a year, and the public had notice of the CAFOs, which were posted on EPA's Internet site for public review.
For the reasons discussed above, EPA finds both that there is good cause to forego notice and comment for this interim rule, and that there is good cause for this rule to take immediate effect and to take effect as described above, for those sources that receive actual notice for purposes of enforcement. Since this is not a major rule under the Congressional Review Act (CRA), the 60-day delay in effective date required for major rules under the CRA does not apply.
We are also simultaneously publishing a parallel proposed rulemaking which seeks comment on information found within this final rule. Note that Docket Number EPA-R08-OAR-2012-0479 is being used for both the final rule and the parallel proposed rule.
In today's action, we are promulgating a Reservation-specific FIP to establish enforceable control requirements for reducing VOC emissions from oil and natural gas production activities on the FBIR in North Dakota. Specifically, we are issuing this rule to require owners and operators of oil and natural gas production facilities producing from the Bakken Pool
As noted above, promulgating these Federal regulations addresses an important initial step to fill a regulatory gap with regard to controlling VOC emissions from oil and natural gas operations on the FBIR. There is no other Federal rule, including the recently finalized NSPS and NESHAPs for the Oil and Gas Sector (NSPS OOOO and NESHAP HH),
What we are providing in the way of regulations in the FIP, and the impact that it will have on permitting is generally consistent with the approach that we have approved of in the areas surrounding the FBIR. Owners and operators of oil and natural gas operations in the NDDoH jurisdiction producing from the Bakken Pool are potentially subject to the North Dakota preconstruction permitting requirements found in the North Dakota Air Pollution Control Rules (“North Dakota Rules”) at Chapter 33-15-14 (Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate) and Chapter 33-15-15 (Prevention of Significant Deterioration of Air Quality) if uncontrolled emissions are greater than the permitting thresholds. However, all of the owners and operators are also subject to the North Dakota Rules for the operation of oil and natural gas production operations in the State of North Dakota. The regulations found at Chapter 33-15-07 (Control of Organic Compound Emissions) provide legally and practicably enforceable control requirements and VOC emission reductions when applicable. Additionally, all of the owners and operators are subject to the NDIC regulations for well completions found at Chapter 38-08 Control of Oil and Gas Resources. In many cases, owners and operators complying with these additional North Dakota Rules and NDIC regulations, and following the NDDoH guidance (Bakken Pool Guidance)
Similar to the owners and operators of oil and natural gas operations producing from the Bakken Pool in NDDoH jurisdiction, the owners and operators of oil and natural gas operations producing from the Bakken Pool on the FBIR are potentially subject to the Federal preconstruction permitting requirements found in the Federal rules at 40 CFR 52.21 (Prevention of Significant Deterioration of Air Quality), and 40 CFR 49.151 through 49.161 (Federal Tribal NSR Rule). However, on the FBIR only NSPS OOOO and NESHAP HH provide legally and practicably enforceable VOC control requirements outside of the Federal pre-construction permitting requirements. Further, NSPS OOOO only applies to new and modified facilities and only to the oil storage tanks being utilized in the Bakken Pool operations. Thus, most owners and operators of oil and natural gas activities producing in the Bakken Pool must obtain preconstruction permits before production can begin, or if they are not obligated to obtain a permit face no control obligations whatsoever.
This rule will fill this regulatory gap. Consistent with the regulatory structure that exists off the FBIR, and NSPS OOOO, this rule requires VOC control requirements and emissions reductions, monitoring, recordkeeping and reporting with regard to well completions, recompletions, and production and storage operations. This rule will also, to the extent practicable, minimize the construction permitting program implementation burdens upon us and the regulated community while establishing requirements that are unambiguous and legally and practicably enforceable.
However, this rule will not eliminate any potential permitting requirements for oil and natural gas production facilities, but in many cases it will impose legally and practicably enforceable requirements that will lower PTE to a level that will allow the operators to construct without being required to obtain a PSD or Federal preconstruction permit under the Federal Tribal NSR Rule for Indian country. Specifically, where compliance with the requirements of this rule results in PTE VOCs from all pollution-emitting sources at the facility that are less than the thresholds in the PSD and Federal Tribal NSR rules, the source would not trigger permitting requirements and therefore may avoid PSD and minor source preconstruction permitting altogether. To comply with the CAA and avoid PSD or minor source preconstruction permitting altogether, a facility must calculate its PTE VOCs from all pollution-emitting sources at the facility and verify that it is less than the threshold in the PSD and Federal Tribal NSR rules. While we believe that VOC is the pollutant most likely to be emitted in quantities sufficient to require permitting, the facility may not avoid the PSD and Federal Tribal NSR permitting requirements if its emissions of any other regulated NSR pollutant are high enough to trigger PSD requirements.
Included in the docket for this rule are copies of the NDDoH rules and guidance and the NDIC regulations that we considered in this process, as well as a technical support document explaining the requirements as compared to these requirements.
We developed this rule in consultation with the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation. As part of this consultation we evaluated the oil and natural gas activities and sources of VOC emissions that could impact air resources on the Reservation and the differences in the VOC emission reduction requirements for those facilities operating on the FBIR compared to those facilities operating in NDDoH jurisdiction. We also held a meeting with the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nations on June 13, 2012.
To develop this rule, we first determined that oil and natural gas production on the FBIR from the Bakken Pool was becoming increasingly prevalent and that information regarding the nature of the fluids produced from the Bakken Pool indicated significant emissions of VOC. We accomplished this step by reviewing information provided by the NDDoH and a host of oil and natural gas operators already producing in the Bakken Pool.
In order to develop appropriate requirements for the control of emissions from the production operations in the Bakken Pool, we studied the nature of the hydrocarbon liquids being produced and existing operations currently in practice. An oil well produces predominantly crude oil,
The oil/natural gas/water emulsion being produced from each well is transported up the wellbore using an electric lifting unit, when required. The emulsion from the wells producing to this facility is transported through 2-phase separators (separators) which are an inherent component of the pipeline. The number of separators on any one production pipeline can vary from one to several. These separators reduce the pressure of the oil/natural gas/water emulsion to initiate the separation of the natural gases from the liquids. The natural gases and liquids are then sent to a 3-phase separator (heater-treater). The heater-treater reduces the pressure closer to ambient pressure and heats the leftover emulsion using a flame-arrested line heater (the heater-treater burner). The combination of higher temperatures and lower pressures allows for additional separation of the natural gas/oil/water phases from each other because of differences in densities.
Following the heater-treater, the produced oil and water are routed to storage tanks. The recovered natural gas is transferred from the heater-treater to the sales natural gas pipeline or to an emissions control unit when a natural gas sales pipeline is not available or the pipeline has a limited capacity. The oil is temporarily stored in these on-site storage tanks prior to being transferred either to tanker trucks or to a lease automatic custody transfer (LACT) unit for conveyance to a refining process plant. Separated water is temporarily stored in the on-site storage tanks prior to being loaded into tanker trucks for transport and disposal.
In addition to the natural gas recovered from the extracted wellhead fluids, low pressure natural gas is also collected from off-gassing that occurs from the storage of the produced oil and water in the on-site tanks at the facilities. This low pressure natural gas is collected via a vent line from the tanks and is either routed to an enclosed combustor, utility flare or pit flare for combustion, or is routed to a vapor recovery unit (VRU) to be injected into a natural gas sales pipeline for conveyance to a natural gas plant. In the event that pipeline injection of recoverable natural gas is temporarily infeasible and no enclosed combustor or utility flare is operational onsite, the natural gas may temporarily be routed through a closed-vent system to a pit flare.
We further identified, in the information provided, that the most prevalent sources of VOC emissions associated with oil and natural gas production come from well completions, recompletions, and production and storage operations. During well completions and recompletions there is a period of flowback of oil, natural gas, and water from newly drilled wells in order to expel drilling and reservoir fluids which vents considerable VOC emissions to the atmosphere. Large amounts of VOCs are also emitted during production when the reservoir fluids are separated into oil, natural gas and water under high pressure using heat. Finally, the transfer and storage of the produced oil and water after separation can be a source of VOC emissions if vented to the atmosphere. In other words, the separated oil and water are both under high pressure and still contain some dissolved natural gas. When the separated oil and water are subjected to atmospheric pressure during transfer to storage tanks, the dissolved natural gas comes out of the liquid. Unless a natural gas sales pipeline is available and is used to receive the evolved natural gas, it becomes a significant source of VOC emissions. Due to the high levels of VOC emissions from these specific operations, we established VOC control and emission reduction requirements in this rule for completion and recompletion operations, heater-treater systems associated with production operations, and storage tanks associated with oil and water storage operations.
Because of the experience that already existed in the Bakken Pool, we consulted with the owners and operators that are currently producing from the Bakken Pool on the FBIR and in NDDoH jurisdiction with regard to the production practices already in place. The practices currently in place are primarily due to product recovery or safety concerns and demonstrate compliance with the applicable NDIC regulations for flaring of co-produced natural gas and safety that address those concerns. These consultations provided us not only with information on the production on and off the Reservation, but also provided us with information on the existing phased approach to controlling practices occurring both from well completion and recompletions, through production operations, and ending with storage and loading operations and an appropriate timeline for installation of the controls. Components of this rule are based on these practices that are already in place off the FBIR.
In addition, we evaluated the North Dakota regulations to help identify appropriate requirements for construction and operation of the regulated equipment and the requirements for controlling VOC emissions from this equipment. The North Dakota Rules at Chapter 33-15-07 provide requirements for the construction and operation of units that separate volatile organic liquids from water, and the control of VOC emissions from such units. Specifically, Chapter 33-15-07 requires that any equipment processing, treating, storing or handling volatile organic liquids must be equipped with covers (in the case of tanks), closed vent systems and control devices, such as VRUs, enclosed combustors, or flares. Chapter 33-15-07 refers to the Standards of Performance for VOC Emissions from Petroleum Refinery Wastewater Systems at 40 CFR 60.690 for the control requirements and the requirements are appropriate to crude oil production operations. Chapter 33-15-07 requires the use of submerged pipe filling during storage operations to limit the evolution of natural gas from the oil and water. We determined that the VOC emission reduction requirements during the separation of the oil, natural gas, and water in this rule were relevant and appropriate as a basis for this rule. The North Dakota Rules at Chapter 33-15-20 provide requirements for the construction and operation of oil and natural gas production equipment and the control of VOC emissions from this equipment. Chapter 33-15-20 includes
We also reviewed the NDIC regulations and the Bakken Pool Guidance. The NDIC regulations found in the Control of Oil and Gas Resources at Chapter 38-08 require natural gas from the heater-treaters to be routed to a natural gas gathering pipeline as soon as practicable. When a pipeline is not available, heater-treater natural gas is required to be routed to a control system or device. The Bakken Pool Guidance details the air pollution control requirements of oil and natural gas operations producing from the Bakken Pool and provides an approach that may be used by owners and operators of oil and natural gas operations producing from the Bakken Pool to demonstrate compliance with the applicable North Dakota Rules. VOC control requirements have been established within this guidance for tank emissions and heater-treater systems and much of the control equipment requirements and monitoring requirements in this rule were adapted from this guidance. Control of VOC emissions from other sources such as dehydration units, pneumatic controllers, pneumatic pumps, truck loading, etc. are also included in this guidance; however, we did not evaluate those components of oil and natural gas production operations. NDDoH identifies acceptable control systems that may be used by the owners and operators. These systems include: a ground pit flare for tank and heater-treater emissions with an assumed 90.0 percent VOC destruction efficiency; a VRU for tank emissions, designed and operated to reduce the mass content of VOC emission by at least 99.0 percent; and an enclosed combustor or utility flare for tank and heater-treater emissions designed and operated to reduce the mass content of VOC emission by at least 98.0 percent. Heater-treater natural gas must be routed to a natural gas gathering pipeline as soon as practicable. In addition, to VOC control requirements, the guidance provides extensive operating and monitoring requirements for the controls. According to the owners and operators that are producing from the Bakken Pool on the FBIR, they are already voluntarily following this guidance in the FBIR. Therefore, we determined that the VOC emission reduction requirements in this document were relevant and appropriate as a basis for establishing monitoring, recordkeeping and reporting requirements necessary for enforceability of this rule.
We also reviewed NSPS OOOO, which provides standards for oil and natural gas production from natural gas wells. However, with the exception of storage tanks and pneumatic controls, none of the production operations from the oil wells in the Bakken Pool that are covered by this rule are covered by NSPS OOOO. While this standard does not regulate the completion, recompletion, or production operations for the operations producing from the Bakken Pool, the common characteristics between natural gas production and the Bakken Pool production and the regulatory requirements specific to completion and recompletion, provided insight into feasible control requirements for these operations. In addition, the monitoring, recordkeeping and reporting requirements for production and storage operations were reviewed, and for necessary conditions to ensure legal and practicable enforceability were included in this rule. Some of the enhancements to the enforceability of the VOC reductions in this rule are derived from this standard.
Although we view the most relevant regulatory analogue to those operations that are in NDDoH's jurisdiction and producing from the Bakken Pool, we also reviewed other state oil and natural gas production-related regulations for areas that are similar to North Dakota in industry, meteorology, or air quality concerns to ensure the proposed requirements are legally and practicably enforceable, as well as reasonably achievable, because the technologies are being commonly used and regulated.
The other state air pollution agencies' rules and/or guidance that we reviewed included: Montana Department of Environmental Quality (MDEQ),
Regarding state regulations and guidance for VOC destruction efficiency and monitoring of enclosed combustors and utility flares, the rule requirements
When reviewing state regulations or guidance for produced oil and water storage tanks, we focused on those that might apply to the tank sizes that are typically constructed at oil and natural gas production facilities on the FBIR, primarily tanks with a storage capacity of 500 bbl each or less (approximately 21,000 gallons). The requirements for construction and emission control of produced oil and water storage tanks are fairly consistent with all state regulations and guidance reviewed, although there are varying degrees of
This rule will apply to any person who owns or operates an existing (constructed or modified on or after August 12, 2007), new, or modified oil and natural gas production facility
This rulemaking is a step in addressing concerns that have been raised about the potential impacts due to increasing oil and natural gas development on the FBIR. If in the future, we become aware of air quality or permitting burden related to oil and natural gas production for other Reservations or areas of Indian Country, using our authority described in Section V. of this notice, we may propose other FIPs that are deemed necessary or appropriate.
This rule is not a permitting program. It therefore does not impose or exempt the facilities from any Federal CAA permitting requirements, including the PSD preconstruction permitting requirements at 40 CFR § 52.21 or Federal Tribal NSR Rule permitting requirements for minor sources at 40 CFR 49.151. The purpose of this rule is to provide legal and practical enforceability for the use of VOC emission controls that are already being used voluntarily by the industry and for VOC emissions reductions from those controls. Provided that the facilities are in compliance with the new rule, they may take into account the enforceable VOC emission reductions from the required controls they use when calculating their PTE for determining applicability of the permitting requirements, to the extent that the effect those controls would have on VOC emissions is legally and practicably enforceable.
Regardless of this rule, some facilities' PTE VOCs or any other regulated NSR pollutant may exceed the applicability thresholds for PSD or Federal Tribal NSR Rule permitting even after applying the legally and practicably enforceable emission reductions provided in this rule. In such cases, the owners or operators of these facilities are required to apply for and obtain the appropriate permits.
This rule does not exempt facilities located on the FBIR from the registration requirements of the Federal Tribal NSR Rule, promulgated on July 1, 2011. Nor does this rule impose any additional registration requirements. Again, the purpose of this rule is to provide legal and practical enforceability for the use of VOC emission controls that are already being used as an industry standard and for VOC emissions reductions from those controls. Provided that the facilities are in compliance with the provisions of this rule, facilities may include the enforceable VOC emission reductions resulting from the controls required in this rule when calculating their PTE, to the extent that the effect those controls would have on VOC emissions is legally and practicably enforceable.
If the PTE VOCs or any other regulated NSR pollutant is less than the major source thresholds in 40 CFR 52.21, but equal to or greater than the thresholds in the Federal Tribal NSR Rule, then registration is required of these facilities (40 CFR 49.160). Those facilities that must obtain a PSD permit pursuant to 40 CFR 52.21 or wish to obtain a preconstruction permit pursuant to 40 CFR 49.151 of the Federal Tribal NSR Rule, in addition to meeting the requirements of this rule, are exempt from this registration requirement.
This rule applies to each owner or operator constructing or operating an oil and natural gas production facility that is located on the FBIR and producing from the Bakken Pool with one or more oil and natural gas wells, any one of which a well completion or recompletion operation is/was initiated on or after August 12, 2007.
For the purposes of this rule, a well completion means the process that allows for the flowback of oil and natural gas from newly drilled wells to expel drilling and reservoir fluids and tests the reservoir flow characteristics, which may vent produced hydrocarbons to the atmosphere via an open pit or tank. A well completion operation means any oil and natural gas well completion with hydraulic fracturing occurring at an oil and natural gas production facility. The completion date is considered the date that construction at an oil and natural gas production facility has commenced. A well recompletion operation means any oil and natural gas well completion with hydraulic refracturing occurring at an oil and natural gas production facility. The recompletion date is considered the date that a modification has occurred at an oil and natural gas production facility. The reason we selected the initiation of completions operations as the date for defining a new facility is that owners and operators use drill rigs prior to initial completion operations and this equipment is not considered a stationary source. In addition, it is not certain during the drilling operations whether a well will be a producing well. Hence it is not known whether an oil and natural gas production facility will be constructed to support that well. The outcome of a completion operation provides the well owners and operators information necessary to determine whether an oil and gas production
In determining the appropriate effective date and the well completion dates for this rule, we evaluated the purpose of the rule, the gaps in regulations, NSPS OOOO and the requirements and stipulations of CAFOs finalized between us and select operators on the FBIR in late August 2011 and amended, in some cases, between then and July 2012. The August 12, 2007, date is the earliest well completion date identified in the CAFOs. These orders established control requirements during the life of the orders for facilities operating on the FBIR by these companies who voluntarily entered into the agreement with us. One goal of this FIP for existing oil and natural gas production facilities is to provide a CAA compliance mechanism for those companies with CAFOs, prior to their expiration, which will occur between August 26, 2012 and August 31, 2012. Copies of all of the CAFOs can be found in the docket for the rule.
All counties in North Dakota that coincide with the FBIR are designated as unclassifiable/attainment for all criteria pollutants under the CAA.
Current air quality conditions in the region of the FBIR and in western North Dakota are good, with measured ambient ozone
We evaluated the impacts of changes in VOC and nitrogen oxides (NO
Expected potential emissions of sulfur dioxide (SO
This rule establishes legally and practicably enforceable VOC emission reductions that reflect reductions that facilities are already routinely achieving through the installation and operation of control equipment for health, safety and market purposes. In addition, this rule does not exempt these facilities from other potentially applicable regulatory or permitting requirements. Therefore, we believe that air quality in this area will not be adversely impacted by this action.
Supporting air quality information is discussed in the Technical Support Document for this rule, found in the rule docket.
Produced natural gas and natural gas emissions resulting from oil and natural gas production from the Bakken Pool underlying the FBIR have a high VOC content. Typically, the natural gases associated with the produced oil would be captured as product and injected directly into a natural gas sales pipeline. However, this is a relatively new field and while the natural gas sales pipelines are being developed, they are minimally available at this time. Currently, most produced natural gas and natural gas emissions from oil and natural gas production operations on the FBIR are routed to a combustion device such as a pit flare, utility flare, or enclosed combustor.
Uncontrolled emissions of VOC from operations at an oil and natural gas production facility consisting of a single well and associated production and storage operations were estimated to average approximately 2,165 tons per year (tpy). Of this total, approximately 1,610 tpy of VOC results from produced natural gas emissions from the heater-treater and 555 tpy of VOC is emitted from the produced oil and water storage tanks. This rule requires that emissions from the heater-treater and the storage tanks be routed to a combustion device. We estimate that, on average, the control requirements in this rule will reduce VOC emissions from an oil and natural gas production facility by approximately 2,090 tpy per well.
The costs of the control equipment required by this rule depend, in part, on the number of wells associated with each oil and natural gas production facility. Generally, as the number of wells located at oil and natural gas production facilities increase, the volume of oil and natural gas production and associated emissions also increase. Multiple wells at an oil and natural gas production facility can often share control equipment if there is sufficient capacity to handle the additional produced natural gas and natural gas emissions; thus, the costs of the control equipment per well potentially decreases at oil and natural gas production facilities that consist of multiple wells. The Bureau of Land Management (BLM) has estimated that future development in the area of North Dakota encompassing the FBIR is likely to feature an average of 1.5 wells per facility.
We calculated the total annual cost for a two-well facility utilizing a pit flare, utility flare, and two enclosed combustors as control equipment. For this operating scenario, we have
Based on the reasonably foreseeable development in the 2011 BLM supplemental report, we estimate that a maximum of 1,000 facilities may be developed on the FBIR by 2029. Applying a maximum total annual cost impact for a two-well facility of approximately $52,000, the maximum annual cost of compliance with this rule on the oil and natural gas industry is estimated to be approximately $50 million. However, we believe this is a conservative estimate and that actual annual costs would be much lower due to factors such as increased facility well density, standard industry practice to use VOC control equipment, and anticipated pipeline infrastructure development, which is explained further in the technical support document for this rule.
The Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nations are a federally-recognized Indian tribe organized under a Constitution and By-Laws ratified by the Tribes on May 15, 1936 and approved by the Secretary of the Interior on June 29, 1936 (with relevant amendments to the Constitution and By-Laws approved by the Department of the Interior on March 11, 1985).
Pursuant to CAA section 301(d), 42 U.S.C. 7601(d), we are authorized to treat eligible Indian tribes in the same manner as states (TAS) for purposes of implementing CAA provisions over their entire Reservation and over any other areas within their jurisdiction.
Section 301(d) of the CAA, 42 U.S.C. 7601(d), directs us to promulgate regulations specifying the provisions of the Act for which it is appropriate to treat Indian tribes in the same manner as states. Pursuant to this statutory directive, EPA promulgated regulations entitled, “Indian Tribes: Air Quality Planning and Management” (TAR) 63 FR 7254 (February 12, 1998). Our regulations delineate the CAA provisions for which it is appropriate to treat tribes in the same manner as a state.
The TAR preamble clarified that by including CAA section 110(c)(1) on the § 49.4 list, “EPA is not relieved of its general obligation under the CAA to ensure the protection of air quality throughout the nation, including throughout Indian country. In the absence of an express statutory requirement, EPA may act to protect air quality pursuant to its “gap-filling” authority under the Act as a whole.
The preamble to the TAR set forth our view articulated in the proposed rule that, based on the “general purpose and scope of the CAA, the requirements of which apply nationally, and on the specific language of sections 301(a) and 301(d)(4), Congress intended to give to the Agency broad authority to protect tribal air resources.”
The NDDoH, the CAA permitting authority for areas outside of Indian country, including outside of the FBIR, has promulgated rules to control emissions from oil and natural gas production facilities. Since there is not currently an approved FIP specifically covering the reduction of VOC emissions related to natural gas emissions from oil and natural gas production facilities on the FBIR, a regulatory gap exists with regard to such facilities operating within the exterior boundaries of the Reservation. This FIP will establish legally and practicably enforceable requirements to control and reduce VOC emissions. Therefore, in this rule, we determined that it is necessary and appropriate to exercise our discretionary authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate a FIP to remedy an existing regulatory gap under the Act with respect to the FBIR.
This rule applies to oil and natural gas facilities producing from the Bakken Pool that are constructed and operating on the FBIR in North Dakota on or after August 12, 2007. Specifically, this rule applies to facilities on the FBIR within the Crude Petroleum and Natural Gas Extraction Industry, North American
Compliance with the rule is required no later than November 13, 2012 or upon initiation of completion or recompletion operations, whichever is later. Upon signature by the Administrator, we will post this rule on our Internet site (
The provisions in § 49.141 establish the steps by which the Three Affiliated Tribes may request delegation to assist us with the administration of this rule and the process by which the Regional Administrator of EPA Region 8 may delegate to the Tribes the authority to assist with such administration of this rule. As described in the regulatory provisions, any such delegation will be accomplished through a delegation of authority agreement between the Regional Administrator and the Tribes. This section provides for administrative delegation of this federal rule and does not affect the eligibility criteria under CAA section 301(d) and 40 CFR 49.6 for TAS should the Tribes decide to seek such treatment for the purpose of administering their own EPA-approved program under Tribal law. Administrative delegation is a separate process from TAS under the TAR. Under the TAR, Indian tribes seek EPA-approval of their eligibility to run CAA programs under their own laws. The Three Affiliated Tribes would not need to seek TAS under the TAR for purposes of requesting to assist us with administration of this rule through a delegation of authority agreement. In the event such an agreement is reached, the rule would continue to operate under federal authority throughout the FBIR, and the Tribes would assist us with administration of the rule to the extent specified in the agreement.
The provisions in § 49.142 General Provisions provide: (1) Definitions that apply to this rule; (2) assurance that we will maintain its authority to require testing, monitoring, recordkeeping, and reporting in addition to that already required by an applicable requirement, in a permit to construct or permit to operate in order to ensure compliance; and (3) assurance that nothing in the rule will preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a facility would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed.
The provisions in § 49.143 Construction and Operational Control Measures provide requirements to reduce VOC emissions during well completion and recompletion operations. The owner or operator must route all casinghead natural gas emissions associated with completion and recompletion operations to a utility flare or a pit flare capable of reducing the mass content of VOCs in the natural gas vented to it by at least 90.0 percent. We note that the well completion and recompletion control requirements to use pit flares or utility flares that have the capability to reduce the mass content of VOC in the natural gas emissions routed to them by at least 90.0 percent by weight are the minimum level of control that would be allowed under this rule. Owners and operators may also choose to perform reduced emission completions and recompletions,
The rule requires the owner or operator to route all standing, working, breathing and flashing losses from the produced oil storage tanks and any produced water storage tanks interconnected with the produced oil storage tanks through a closed vent system to either an operating system designed to recover and inject the natural gas emissions into a natural gas gathering pipeline system for sale or other beneficial use, or to an enclosed combustor or utility flare capable of reducing the mass content of VOC in the natural gas emissions vented to the device by at least 98.0 percent. We note that while NSPS OOOO requires 95% VOC reduction of emissions from storage tanks, owners and operators of oil and natural gas production facilities on the FBIR have indicated that a 98% VOC destruction efficiency in the Bakken Pool Guidance is achievable and committed in their synthetic minor NSR applications to reduce the mass content of VOC emissions routed to the enclosed combustors or utility flares used for storage tank control by at least 98.0% by weight. Since oil and natural gas production on the FBIR has higher VOC content than typical natural gas production and the overall BTU value is generally higher, this should result in more efficient VOC destruction. Therefore, we believe that a requirement of 98.0% reduction of VOC emissions during continued production operations is appropriate. However, to prevent duplicative federal requirements for
The requirements to use pit flares, enclosed combustors, and utility flares are based on requirements in the North Dakota Rules at Chapters 33-15-07 and 33-15-20, and the Bakken Pool Guidance. These control devices must be operated under specific conditions as specified in § 49.144 Control Equipment Requirements and § 49.145 Monitoring Requirements. The VOC destruction efficiencies of 90.0 and 98.0 percent are the same efficiencies required in the Bakken Pool Guidance.
The provisions in § 49.144 Control Equipment Requirements require the use of covers on all produced oil and water storage tanks and the use of closed-vent systems with all VOC capture and control equipment. These requirements are derived from the North Dakota Rules at Chapter 33-15-07. Section 49.144 also specifies construction and operational requirements for the covers and closed-vent systems. The construction and operational requirements of the covers and closed-vent systems are based on the NSPS OOOO requirements and are intended to provide legal and practical enforceability. In addition, § 49.144 requires specific construction and operational requirements of pit flares, enclosed combustors, and utility flares. These requirements are derived from the Bakken Pool Guidance and have been enhanced where necessary to provide legal and practical enforceability.
The provisions in § 49.144 require that each owner and operator equip the openings on each produced oil storage tank and each produced water storage tank that is interconnected with produced oil storage tanks with a cover that ensures that natural gas emissions are efficiently routed through a closed-vent system to a vapor recovery system, an enclosed combustor, or a utility flare. Each cover and all openings on the cover (
Each owner and operator is required to use closed-vent systems to collect and route natural gas emissions to the respective VOC control devices. All vent lines, connections, fittings, valves, relief valves, or any other appurtenance employed to contain and collect gases, and transport them to the VOC control equipment must be maintained and operated properly during any time the control equipment is operating and must be designed to operate with no detectable natural gas emissions. If a closed-vent system contains one or more bypass devices that could be used to divert all or a portion of the natural gas, from entering the VOC control devices, the owner or operator must meet one of the following options for each bypass device: (1) At the inlet to the bypass device properly install, calibrate, maintain, and operate a natural gas flow indicator capable of taking periodic readings and sounding an alarm when the bypass device is open such that the natural gas is being, or could be, diverted away from the control device and into the atmosphere; or (2) secure the bypass device valve in the non-diverting position using a car-seal or a lock-and-key type configuration. These requirements are consistent with the requirements for storage tanks under NSPS OOOO and will ensure that the requirements apply to any storage tanks that are not subject to NSPS OOOO.
Each owner or operator is required to follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions from each enclosed combustor or utility flare. Each enclosed combustor must have the capacity to reduce the mass content of the VOC in the natural gas routed to it by at least 98.0 percent for the minimum and maximum natural gas volumetric flow rate and British Thermal Unit (BTU) content routed to it. We note that the NSPS OOOO requires owners and operators to demonstrate that enclosed combustors and utility flares achieve the required VOC reduction by conducting performance tests. Those units that have been tested by the manufacturer in accordance with specific requirements in the rule, or that are designed and operated in accordance with applicable requirements in 40 CFR 60.18(b), satisfy the requirements of performance testing by the owner or operator. For the purposes of this rule, we require that all utility flares installed per this rule meet the requirements in 40 CFR 60.18(b), and all enclosed combustors installed per this rule must be tested according to the NSPS OOOO performance testing requirements. Until such time that compliance is required with the storage vessel requirements in the NSPS OOOO standard, however, the owner or operators can demonstrate compliance using methods specified in this rule.
We determined that certain work practice and operational requirements are also necessary for the practical enforceability of the VOC emission reduction requirement that the enclosed combustors or utility flares must achieve. Flares and combustors must be operated within specific parameters to effectively destroy VOC emissions. This was discussed in great detail in the preamble and technical support
Section 49.144 requires that each owner or operator limit the use of pit flares to: the control natural gas emissions during well completion operations; the control VOC emissions in the event the natural gas that is being recovered for sale or other beneficial purpose must be diverted to an emergency control device because injection into the pipeline is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational; or use when total uncontrolled PTE VOCs from all produced oil storage tanks and any produced water storage tanks interconnected with produced oil storage tanks at an oil and natural gas production facility have declined to less than, and are reasonably expected to stay below, 20 tons in any consecutive 12-month period. Each pit flare must be operated to reduce the mass content of VOC in the natural gas routed to it by at least 90 percent and must be operated with no visible smoke emissions.
As North Dakota has done in the Bakken Pool Guidance, § 49.144 allows owners or operators of oil and natural gas production facilities to use control devices other than an enclosed combustor or utility flare, provided they are capable of achieving at least a 98.0 percent VOC destruction efficiency and upon our written approval. This provision will allow for owner or operators to take advantage of technological advances in VOC emission control for the oil and natural gas production industry and will provide us with valuable information on any new control technologies.
Section 49.145 Monitoring Requirements requires each owner or operator conduct certain monitoring that we determined is necessary for the practical enforceability of the VOC emission reduction requirements, including but not limited to: (1) Monitoring of the hours of operation of each pit flare used to control VOC emissions in the event the natural gas that is being recovered for sale or other beneficial purpose must be diverted to an emergency control device because injection into the pipeline is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational; (2) Monitoring of the number of barrels of oil produced at the facility each time the oil is unloaded from the produced oil storage tanks; (3) Monitoring of the volume of natural gas from the heater-treater sent to each enclosed combustor, utility flare, and pit flare at all times; (4) Monitoring of the volume of standing, working, breathing, and flashing losses from the produced oil and produced water storage tanks sent to each vapor recovery system, enclosed combustor, utility flare, and pit flare at all times; (5) Directly measuring, or calculating using EPA approved models, various parameters (i.e., product throughput, enclosed combustor flame presence, temperature, etc.) related to the proper operation of emissions units and required control devices to assure compliance with the emissions reduction requirements and operational limitations; and (6) Visibility monitoring for detecting visible smoke from enclosed combustors, utility flares, and pit flares.
These requirements are derived from the Bakken Pool Guidance in conjunction with NSPS OOOO. The monitoring, recordkeeping and reporting requirements for the covers, close-vent systems, pit flares, enclosed combustors, and utility flares are based, in part, on the requirements in the Bakken Pool Guidance. Specifically, our review and determination that these requirements are appropriate, as well as the Bakken Pool Guidance provides the basis for monitoring the flares and enclosed combustors. The monitoring of the covers and closed-vent systems, in addition to the recordkeeping and reporting requirements are based on the NSPS OOOO requirements for these units and are intended to provide legal and practical enforceability.
Section 49.146 Record Keeping Requirements requires that each owner or operator of an oil and natural gas production facility keep specific records to be made available upon our request, in lieu of voluminous reporting requirements. The records that must be kept include, but are not limited to, all required measurements, monitoring, and deviations or exceedances of rule requirements and corrective actions taken, as well as any manufacturer specifications and guarantees or engineering analyses. These record keeping requirements were derived independently of the North Dakota Rules and Bakken Pool Guidance and provide legal and practical enforceability to the control and emission reduction requirements of this rule.
Section 49.147 Reporting Requirements requires that each owner or operator of an oil and natural gas production facility prepare and submit an annual report, beginning one year after this rule becomes effective covering the period for the previous calendar year. The report must include a summary of required records identifying each oil and natural gas production well completion or recompletion operation for each facility conducted during the reporting period, an identification of the first date of production for each oil and natural gas production well at each facility that commenced operation during the reporting period, and a summary of deviations or exceedances of any requirements of the FIP and the corrective measures taken. Additionally,
We decided not to require owners or operators to register their oil and natural gas production facilities, because the Federal Tribal NSR Rule at 40 CFR 49.151 already requires registration of existing minor sources and such a requirement in this rule would be redundant.
These reporting requirements were derived independently of the North Dakota Rules and Bakken Pool Guidance and provide legal and practical enforceability to the control and emission reduction requirements of this rule.
This action is not a “significant regulatory action” under the terms of Executive Order 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 an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action 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 will not have a significant economic impact on a substantial number of small entities due to the reduced regulatory requirement, and thus the regulatory burden, to obtain Federal CAA permits that this rule provides. We continue to be interested in the potential impacts of this rule on small entities and welcome comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, Section 205 of UMRA allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under Section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, we determined that this rule does not contain a federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any one year. In addition, this rule does not contain a significant federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This rule will not have substantial direct effects on the States, on the
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires us to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”
Under Section 5(b) of Executive Order 13175, we may not issue a regulation that has Tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by Tribal governments, or we consult with Tribal officials early in the process of developing the proposed regulation. Under Section 5(c) of Executive Order 13175, we may not issue a regulation that has Tribal implications and that preempts Tribal law, unless the Agency consults with Tribal officials early in the process of developing the proposed regulation.
We concluded that this final rule will have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. These regulations would affect the FBIR community by filling a gap in air quality regulations and thus creating a level of air quality protection not previously provided under the CAA. The gap-filling approach used in this rule would create Federal requirements similar to those that are already in place in areas adjacent to the Reservation covered by the proposal. Finally, although Tribal governments are encouraged to partner with us on the implementation of these regulations, they are not required to do so. Since this final rule will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law, the requirements of Sections 5(b) and 5(c) of the Executive Order do not apply to this rule.
Consistent with EPA policy, the EPA consulted with Tribal officials and representatives of the Three Affiliated Tribes of the Mandan, Hidatsa and Arikara Nations early in the process of developing this regulation to permit them to have meaningful and timely input into its development.
Tribal consultation with the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation was first initiated on February 17, 2012 when we mailed a letter inviting the Tribes to consult on the first group of synthetic minor permits being issued on the Reservation under the Tribal NSR Rule. Then, on March 29, 2012, EPA senior management and the Chairman of the Tribes along with other government officials met via conference call to discuss the proposed FIP to be developed for the FBIR. We formally invited the Tribes to consult about the FIP in a letter dated April 10, 2012 to Chairman Tex Hall, of the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation Council.
We again met with members of the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation Council on June 13, 2012 in New Town to consult and receive input from the Tribes as we developed the FIP. In attendance from the Council were the vice Chairman and two council members. The Tribes' legal counsel was also in attendance. The purpose of the consultation was twofold: (1) Update the Tribes on EPA's efforts to develop the FIP so that the air quality on the FBIR is protected and oil and natural gas development continues; and (2) discuss the Tribes' preferences regarding involvement in the FIP process. We provided information on our plan to prepare a FIP to ensure air quality protection while preventing delays in oil and natural gas production. EPA solicited the Tribes' input on the FIP development. The Council members present at the consultation meeting indicated that they strongly desired the FIP rule to be consistent with North Dakota's requirements for oil and natural gas production facilities in order to keep a level playing field for development and continue uninterrupted development of a key economic resource for the Tribe. The Council members expressed interest in the future delegation of the FIP so that the Tribes can implement the rule in place of EPA. The Council members also expressed interest in providing the Tribes' assistance in setting up a public hearing for the rule.
As noted above, the Three Affiliated Tribes of the Mandan, Hidatsa and Arikara Nations have indicated preliminary interest in seeking administrative delegation of the Tribal NSR rule to assist us with administration of that rule. We will continue to work with the Tribes if administrative delegation is something the Tribes decide to pursue.
Information containing the consultation process is contained in the docket for this rule.
For purposes of the proposed rule, EPA specifically solicits additional comments on the proposed action from tribal officials.
EPA interprets E.O. 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the E.O. has the potential to influence the regulation. This action is not subject to E.O. 13045 because it implements specific standards established by Congress in statutes. In addition, this rule requires control and reduction of emissions of VOCs, which will have a beneficial effect on children's health by reducing air pollution.
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 us 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 (
This rulemaking does not involve technical standards. Therefore, we are not considering the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority, low income and indigenous populations because it is in compliance with the National Ambient Air Quality Standards and provides environmental protection for all affected populations including any minority, low income, and indigenous populations.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
40 CFR part 49 is amended as follows:
42 U.S.C. 7401,
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(1) Identifies the specific provisions for which delegation is requested;
(2) Includes a statement by the Mandan, Hidatsa and Arikara Nations' legal counsel (or equivalent official) that includes the following information:
(i) A statement that the Mandan, Hidatsa and Arikara Nations are an Indian Tribe recognized by the Secretary of the Interior;
(ii) A descriptive statement demonstrating that the Mandan, Hidatsa and Arikara Nations are currently carrying out substantial governmental duties and powers over a defined area and that meets the requirements of § 49.7(a)(2); and
(iii) A description of the laws of the Mandan, Hidatsa and Arikara Nations that provide adequate authority to carry out the aspects of the rule for which delegation is requested.
(3) Demonstrates that the Mandan, Hidatsa and Arikara Nations have, or will have, adequate resources to carry out the aspects of the rule for which delegation is requested.
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(2) A Delegation of Authority Agreement may be modified, amended, or revoked, in part or in whole, by the Regional Administrator after consultation with the Mandan, Hidatsa and Arikara Nations.
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(a) Each owner or operator must operate and maintain all liquid and gas collection, storage, processing and handling operations, regardless of size, so as to minimize leakage of natural gas emissions to the atmosphere.
(b) During all oil and natural gas well completion operations or recompletion operations at an oil and natural gas production facility and prior to the first date of production of each oil and natural gas well, each owner or operator must, at a minimum, route all casinghead natural gas to a utility flare or a pit flare capable of reducing the mass content of VOC in the natural gas emissions vented to it by at least 90.0 percent or greater and operated as specified in § 49.144 and § 49.145.
(c) Beginning with the first date of production from any one oil and natural gas well at an oil and natural gas production facility, each owner or operator must, at a minimum, route all natural gas emissions from production operations and storage operations to a control device capable of reducing the mass content of VOC in the natural gas emissions vented to it by at least 90.0 percent or greater and operated as specified in § 49.144 and § 49.145.
(d) Within ninety (90) days of the first date of production from any oil and natural gas well at an oil and natural gas production facility, each owner or operator must:
(1) Route the produced natural gas from the production operations through a closed-vent system to:
(i) An operating system designed to recover and inject all the produced natural gas into a natural gas gathering pipeline system for sale or other beneficial purpose; or
(ii) A utility flare or equivalent combustion device capable of reducing the mass content of VOC in the produced natural gas vented to the device by at least 98.0 percent or greater and operated as specified in § 49.144 and § 49.145.
(2) Route all standing, working, breathing, and flashing losses from the produced oil storage tanks and any produced water storage tank interconnected with the produced oil storage tanks through a closed-vent system to:
(i) An operating system designed to recover and inject the natural gas emissions into a natural gas gathering pipeline system for sale or other beneficial purpose; or
(ii) An enclosed combustor or utility flare capable of reducing the mass content of VOC in the natural gas emissions vented to the device by at least 98.0 percent or greater and operated as specified in § 49.144(c) and § 49.145.
(iii) If the uncontrolled potential to emit VOCs from the aggregate of all produced oil storage tanks and produced water storage tanks interconnected with produced oil storage tanks at an oil and natural gas production facility is less than, and reasonably expected to remain below, 20 tons in any consecutive 12-month period, then, upon written approval by the EPA the owner or operator may use a pit flare, an enclosed combustor or a utility flare that is capable of reducing the mass content of VOC in the natural gas emissions from the storage tanks vented to the device by only 90.0 percent.
(e) In the event that pipeline injection of all or part of the natural gas collected in an operating system designed to recover and inject natural gas becomes temporarily infeasible and there is no operational enclosed combustor or utility flare at the facility, the owner or operator must route the natural gas that cannot be injected through a closed-vent system to a pit flare operated as specified in § 49.144 and § 49.145.
(f) Produced oil storage tanks and any produced water storage tanks interconnected with produced oil storage tanks subject to and controlled under the requirements specified in 40 CFR part 60, subpart OOOO are considered to meet the requirements of
(a)
(1) Each cover and all openings on the cover (
(2) Each cover opening shall be secured in a closed, sealed position (
(i) To add material to, or remove material from the unit (this includes openings necessary to equalize or balance the internal pressure of the unit following changes in the level of the material in the unit);
(ii) To inspect or sample the material in the unit; or
(iii) To inspect, maintain, repair, or replace equipment located inside the unit.
(3) Each thief hatch cover shall be weighted and properly seated.
(4) Each PRV shall be set to release at a pressure that will ensure that natural gas emissions are routed through the closed-vent system to the vapor recovery system, the enclosed combustor, or the utility flare under normal operating conditions.
(b)
(1) Each closed-vent system must route all produced natural gas and natural gas emissions from production and storage operations to the natural gas sales pipeline or the control devices required by paragraph (a) of this section.
(2) All vent lines, connections, fittings, valves, relief valves, or any other appurtenance employed to contain and collect natural gas, vapor, and fumes and transport them to a natural gas sales pipeline and any VOC control equipment must be maintained and operated properly at all times.
(3) Each closed-vent system must be designed to operate with no detectable natural gas emissions.
(4) If any closed-vent system contains one or more bypass devices that could be used to divert all or a portion of the natural gas emissions, from entering a natural gas sales pipeline and/or any control devices, the owner or operator must meet one of the following requirements for each bypass device:
(i) At the inlet to the bypass device that could divert the natural gas emissions away from a natural gas sales pipeline or a control device and into the atmosphere, properly install, calibrate, maintain, and operate a natural gas flow indicator that is capable of taking continuous readings and sounding an alarm when the bypass device is open such that natural gas emissions are being, or could be, diverted away from a natural gas sales pipeline or a control device and into the atmosphere;
(ii) Secure the bypass device valve installed at the inlet to the bypass device in the non-diverting position using a car-seal or a lock-and-key type configuration;
(iii) Low leg drains, high point bleeds, analyzer vents, open-ended valves or lines, and safety devices are not subject to the requirements applicable to bypass devices.
(c)
(1) For each enclosed combustor or utility flare, the owner or operator must follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions;
(2) For each enclosed combustor or utility flare, the owner or operator must ensure there is sufficient capacity to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 98.0 percent for the minimum and maximum natural gas volumetric flow rate and BTU content routed to the device;
(3) Each enclosed combustor or utility flare must be operated to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 98.0 percent;
(4) The owner or operator must ensure that each utility flare is designed and operated in accordance with the requirements of 40 CFR 60.18(b) for such flares.
(5) The owner or operator must ensure that each enclosed combustor is:
(i) A model demonstrated by a manufacturer to the meet the VOC destruction efficiency requirements of §§ 49.140 through 49.147 using the procedure specified in 40 CFR part 60, subpart OOOO at § 60.5413(d) by the due date of the first annual report as specified in § 49.147(b); or
(ii) Demonstrated to meet the VOC destruction efficiency requirements of §§ 49.140 through 49.147 using EPA approved performance test methods specified in 40 CFR part 60, subpart OOOO at § 60.5413(b) by the due date of the first annual report as specified in § 49.147(b); or
(iii) Until such time that 40 CFR part 60, subpart OOOO is promulgated, demonstrated to meet the VOC destruction efficiency requirements of §§ 49.140 through 49.147 by using the EPA approved performance test methods specified in 40 CFR part 63, subpart HH at § 63.772(e)(1)(i) through (iii) for hazardous air pollutants, by the due date of the first annual report as specified in § 49.147(b).
(6) The owner or operator must ensure that each enclosed combustor and utility flare is:
(i) Operated properly at all times that natural gas is routed to it;
(ii) Operated with a liquid knock-out system to collect any condensable vapors (to prevent liquids from going through the control device);
(iii) Equipped with a flash-back flame arrestor;
(iv) Equipped with one of the following:
(A) A continuous burning pilot flame, a thermocouple, and a malfunction alarm and remote notification system if the pilot flame fails.
(B) An electronically controlled auto-ignition system with a malfunction alarm and remote notification system if the pilot flame fails while produced natural gas or natural gas emissions are flowing to the enclosed combustor or utility flare;
(v) Equipped with a continuous recording device, such as a chart recorder, data logger or similar device, or connected to a Supervisory Control and Data Acquisition (SCADA) system, to monitor and document proper operation of the enclosed combustor or utility flare;
(vi) Maintained in a leak-free condition; and
(vii) Operated with no visible smoke emissions.
(d)
(1) The owner or operator must develop written operating instructions, operating procedures and maintenance schedules to ensure good air pollution control practices for minimizing emissions from the pit flare based on the site-specific design.
(2) The owner or operator must only use a pit flare for the following operations:
(i) To control produced natural gas and natural gas emissions during well completion operations or recompletion operations;
(ii) To control natural gas emissions in the event that natural gas recovered for pipeline injection must be diverted to an emergency control device because injection is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational. Use of the pit flare for this situation is limited to a maximum of 500 hours in any twelve (12) consecutive months during periods when pipeline injection has become temporarily infeasible and no enclosed combustor or utility flare installed at the facility is operational; or
(iii) Control of standing, working, breathing, and flashing losses from the produced oil storage tanks and any produced water storage tank interconnected with the produced oil storage tanks if the uncontrolled potential VOC emissions from the aggregate of all produced oil storage tanks and produced water storage tanks interconnected with produced oil storage tanks is less than, and reasonably expected to remain below, 20 tons in any consecutive 12-month period.
(3) The owner or operator must only use the pit flare under the following conditions and limitations:
(i) The pit flare is operated to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 90.0 percent;
(ii) The pit flare is operated in accordance with the site-specific written operating instructions, operating procedures, and maintenance schedules to ensure good air pollution control practices for minimizing emissions;
(iii) The pit flare is operated with no visible smoke emissions;
(iv) The pit flare is equipped with an electronically controlled auto-ignition system with a malfunction alarm and remote notification system if the pilot flame fails;
(v) The pit flare is visually inspected for the presence of a pilot flame anytime produced natural gas or natural gas emissions are being routed to it. Should the pilot flame fail, the flame must be relit as soon as safely possible and the electronically controlled auto-ignition system must be repaired or replaced before the pit flare is utilized again; and
(vi) The owner or operator does not deposit or cause to be deposited into a flare pit any oil field fluids or oil and natural gas wastes other than those designed to go to the pit flare.
(e)
(1) In operating such control devices, the owner or operator must follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions; and
(2) The owner or operator must ensure there is sufficient capacity to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to such other control devices by at least 98.0 percent for the minimum and maximum natural gas volumetric flow rate and BTU content routed to each device.
(3) The owner or operator must operate such a control device to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 98.0 percent.
(a) Each owner and operator must measure the barrels of oil produced at the oil and natural gas production facility each time the oil is unloaded from the produced oil storage tanks using the methodologies of tank gauging or positive displacement metering system, as appropriate, as established by the US Department of the Interior's Bureau of Land Management at 43 CFR part 3160, in the “Onshore Oil and Gas Operations; Federal and Indian Oil & Gas Leases; Onshore Oil and Gas Order No. 4; Measurement of Oil.”
(b) Each owner or operator must monitor the hours that each pit flare is operated to control natural gas emissions in the event that natural gas recovered for pipeline injection must be diverted to an emergency control device because injection is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational.
(c) Each owner or operator must monitor the volume of produced natural gas sent to each enclosed combustor, utility flare, and pit flare at all times. Methods to measure the volume include, but are not limited to, direct measurement and gas-to-oil ratio (GOR) laboratory analyses.
(d) Each owner or operator must monitor the volume of standing, working, breathing, and flashing losses from the produced oil and produced water storage tanks sent to each vapor recovery system, enclosed combustor, utility flare, and pit flare at all times. Methods to measure the volume include, but are not limited to, direct measurement or GOR laboratory analyses.
(e) Each owner or operator must perform quarterly visual inspections of tank thief hatches, covers, seals, PRVs, and closed vent systems to ensure proper condition and functioning and repair any damaged equipment. The quarterly inspections must be performed while the produced oil and produced water storage tanks are being filled.
(f) Each owner or operator must perform quarterly visual inspections of the peak pressure and vacuum values in each closed vent system and control system for the produced oil and produced water storage tanks to ensure that the pressure and vacuum relief set-points are not being exceeded in a way that has resulted, or may result, in venting and possible damage to equipment. The quarterly inspections must be performed while the produced oil and produced water storage tanks are being filled.
(g) Each owner or operator must monitor the operation of each enclosed combustor, utility flare, and pit flare to confirm proper operation as follows:
(1) Continuously monitor the enclosed combustor, utility flare, and pit flare operation, using a malfunction alarm and remote notification system for failures, and checking the system for proper operation whenever an operator is on site, at a minimum quarterly;
(2) Continuously monitor all variable operational parameters specified in the written operating instructions and procedures;
(3) Using EPA Reference Method 22 of 40 CFR part 60, Appendix A, confirm that no visible smoke emissions are present, except for periods not to exceed a total of 2 minutes during any hour, during operation of any enclosed combustor, utility flare, or pit flare whenever an operator is on site; at a minimum quarterly. The observation period shall be 1 hour; and
(4) Respond to any observation of improper monitoring equipment operation or any pilot flame failure alarm and ensure the monitoring equipment is returned to proper operation and/or the pilot flame is relit as soon as practicable and safely possible after an observation or an alarm sounds.
(h) Where sufficient to meet the monitoring and recordkeeping requirements in § 49.145 and § 49.146, the owner or operator may use a
(a) Each owner or operator must maintain the following records:
(1) The measured barrels of oil produced at the oil and natural gas production facility each time the oil is unloaded from the produced oil storage tanks;
(2) The volume of produced natural gas sent to each enclosed combustor, utility flare, and pit flare at all times;
(3) The volume of natural gas emissions from the produced oil storage tanks and produced water storage tanks sent to each enclosed combustor, utility flare, and pit flare at all times;
(4) For each oil and natural gas well completion operation and recompletion operation at an oil and natural gas production facility:
(i) Records identifying each oil and natural gas well completion operation and recompletion operation for each oil and natural gas production facility; and
(ii) The latitude and longitude location of the oil and natural gas well; the date, time, and duration of flowback from the oil and natural gas well; the date, time, and duration of any venting of produced natural gas from the oil and natural gas well; and specific reasons for each instance of venting in lieu of capture or combustion. The duration must be specified in hours.
(5) For each enclosed combustor, utility flare, and pit flare at an oil and natural gas production facility:
(i) Written, site-specific designs, operating instructions, operating procedures and maintenance schedules;
(ii) Records of all required monitoring of operations;
(iii) Records of any deviations from the operating parameters specified by the written site-specific designs, operating instructions, and operating procedures. The records must include the enclosed combustor, utility flare, or pit flare's total operating time during which a deviation occurred, the date, time and length of time that deviations occurred, and the corrective actions taken and any preventative measures adopted to operate the device within that operating parameter;
(iv) Records of any instances in which the pilot flame is not present or the monitoring equipment is not functioning in the enclosed combustor, the utility flare, or the pit flare, the date and times of the occurrence, the corrective actions taken, and any preventative measures adopted to prevent recurrence of the occurrence;
(v) Records of any instances in which a recording device installed to record data from the enclosed combustor, utility flare, or pit flare is not operational; and
(vi) Records of any time periods in which visible smoke emissions are observed emanating from the enclosed combustor, utility flare, or pit flare.
(6) For each pit flare at an oil and natural gas production facility, a demonstration of compliance with the use restrictions set forth in § 49.144(d)(2)(ii) is made by keeping records in a log book, or similar recording system, during each period of time that the pit flare is operating. The records must contain the following information:
(i) Date and time the pit flare was started up and subsequently shut down;
(ii) Total hours operated when pipeline injection was temporarily infeasible for the current calendar month plus the previous consecutive eleven (11) calendar months; and
(iii) Brief descriptions of the justification for each period of operation.
(7) Records of any instances in which any closed-vent system or control device was bypassed or down, the reason for each incident, its duration, and the corrective actions taken and any preventative measures adopted to avoid such bypasses or downtimes; and
(8) Documentation of all produced oil storage tank and produced water storage tank inspections required in § 49.145(d) and (e). All inspection records must include, at a minimum, the following information:
(i) The date of the inspection;
(ii) The findings of the inspection;
(iii) Any adjustments or repairs made as a result of the inspections, and the date of the adjustment or repair; and
(iv) The inspector's name and signature.
(b) Each owner or operator must keep all records required by this section onsite at the facility or at the location that has day-to-day operational control over the facility and must make the records available to the EPA upon request.
(c) Each owner or operator must retain all records required by this section for a period of at least five (5) years from the date the record was created.
(a) Each owner or operator must submit any documents required under this section to: U.S. Environmental Protection Agency, Region 8 Office of Enforcement, Compliance & Environmental Justice, Air Toxics and Technical Enforcement Program, 8ENF-AT, 1595 Wynkoop Street, Denver, Colorado 80202. Documents may be submitted electronically to
(b) Each owner and operator must submit an annual report containing the information specified in paragraphs (b)(1) through (4) of this section. The annual report must cover the period for the previous calendar year. The initial annual report is due 1 year after the first date of production for the first oil and natural gas well at each oil and natural gas production facility or 1 year after August 15, 2012, whichever is later. Subsequent annual reports are due on the same date each year as the initial annual report. If you own or operate more than one oil and natural gas production facility, you may submit one report for multiple oil and natural gas production facilities provided the report contains all of the information required as specified in paragraphs (b)(1) through (4) of this section. Annual reports may coincide with title V reports as long as all the required elements of the annual report are included. The EPA may approve a common schedule on which reports required by §§ 49.140 through 49.147 may be submitted as long as the schedule does not extend the reporting period.
(1) The company name and the address of the oil and natural gas production facility or facilities.
(2) An identification of each oil and natural gas production facility being included in the annual report.
(3) The beginning and ending dates of the reporting period.
(4) For each oil and natural gas production facility, the information in paragraphs (b)(4)(i) through (iii) of this section.
(i) A summary of all required records identifying each oil and natural gas well completion or recompletion operation for each oil and natural gas production facility conducted during the reporting period;
(ii) An identification of the first date of production for each oil and natural gas well at each oil and natural gas production facility that commenced production during the reporting period; and
(iii) A summary of cases where construction or operation was not performed in compliance with the requirements specified in § 49.143, § 49.144, or § 49.145 for each oil and natural gas well at each oil and natural gas production facility, and the corrective measures taken.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes time-limited tolerances for residues of flutriafol in or on cotton, undelinted seed; cotton, meal; cotton, refined oil; and cotton gin byproducts. This action is in response to EPA's granting of an emergency exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on cotton. This regulation establishes a maximum permissible level for residues of flutriafol in or on cotton commodities. The time-limited tolerances expire on December 31, 2014.
This regulation is effective August 15, 2012. Objections and requests for hearings must be received on or before October 15, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0324, is available either electronically through
Debra Rate, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 306-0309; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0324 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0324, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for combined residues of flutriafol, its metabolites and degradates, in or on cotton, undelinted seed at 0.35 parts per million (ppm); cotton, meal at 0.5 ppm; cotton, refined oil at 0.5 ppm; and cotton gin byproducts at 0.50 ppm. These time-limited tolerances expire on December 31, 2014.
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
This is the first section 18 request received for the use of flutriafol on cotton. Texas had the worst one-year, 2011, drought since 1895 (Huber, 2011). Under the drought conditions cotton root rot fungus flourished on stressed cotton plants to reduce yields and produce more fungal inoculums that will remain viable for 5-8 years in the soil. The submitted information showed that in 2011, cotton growers suffered 30-66 percent yield losses in fields infested with cotton root rot. Fields infested with cotton root rot disease last year are expected to have even heavier losses this year unless the pest is effectively mitigated.
In Texas, approximately 12% of 2.4 million acres of cotton are infested with the root rot fungus. In 2012, yield losses are expected to be like 2011 or higher without the use of flutriafol. The severe drought condition of 2011 was a non-routine event that stressed cotton plants. The drought stressed cotton is more susceptible to the root rot fungus which causes high yield losses and build-up of fungal inoculums in soil. The drought condition and elevated pest pressure are likely to continue to cause severe yield losses in the 2012 growing season resulting in significant economic losses.
After having reviewed the submission, EPA determined that an emergency condition exists for this State, and that the criteria for approval of an emergency exemption are met. EPA has authorized a specific exemption under FIFRA section 18 for the use of flutriafol on cotton for control of cotton root rot, caused by the fungus
As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of flutriafol in or on cotton. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without advance notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2014, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on cotton, undelinted seed; cotton, meal; cotton, refined oil and cotton, gin byproducts after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether flutriafol meets FIFRA's registration requirements for use on cotton or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of flutriafol by a State for special local needs under FIFRA section 24(c). Nor do these tolerances by themselves serve as the authority for persons in any State other than Texas to use this pesticide on cotton absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for flutriafol, contact the Agency's Registration Division at the address provided under
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for combined residues of flutriafol, its metabolites and degradates, in or on cotton, undelinted seed at 0.35 ppm; cotton, meal at 0.5 ppm; cotton, refined oil at 0.5 ppm and cotton, gin byproducts at 0.5 ppm.
On November 9, 2011, the Agency published a final rule (76 FR 69643) (FRL-9325-6) establishing tolerances for residues of flutriafol, ((±)-[alpha]-(2-fluorophenyl)-[alpha]-(4-fluorophenyl)-1H-1,2,4-triazole-1-ethanol, in or on multiple commodities. Since the publication of that final rule, the Agency has conducted risk assessments evaluating the use of flutriafol on cotton under section 18 of FIFRA. These new risk assessments have not identified any changes to the hazard data, hazard characterization or end-points relied upon in the November 9, 2011, tolerance rule. The additional exposures and risks associated with residues resulting from the section 18 use on cotton are negligible and do not significantly change the previous acute and chronic aggregate risk. Therefore, establishing the time-limited tolerances on the cotton commodities will not change the most recent aggregate risks resulting from the use of flutriafol, as discussed in the November 9, 2011
Based on the risk assessments and findings discussed in the final rule published in the
An adequate enforcement methodology (gas chromatography/Nitrogen/Phosphorus detector (NPD) for tolerances and method ICIA AM00306 for ruminant liver) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350;
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex, Canada, and Mexico have not established MRLs for flutriafol in or on cotton commodities.
Therefore, time-limited tolerances are established for residues of flutriafol, [(±)-α-(2-fluorophenyl)-α-(4-fluorophenyl)-1 H -1,2,4-triazole-1-ethanol], including its metabolites and degradates, in or on cotton, undelinted seed at 0.35 ppm; cotton, meal at 0.5 ppm; cotton, refined oil at 0.5 ppm; and cotton, gin byproducts at 0.5 ppm. These tolerances expire on December 31, 2014.
This final rule establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(b)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of S-metolachlor in or on beet, garden, leaves, cilantro, leaves and coriander, seed. Interregional Research Project Number 4 requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 15, 2012. Objections and requests for hearings must be received on or before October 15, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0657, is available at
Sidney Jackson, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-7610; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0657 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0657, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
EPA received one comment to the Notice of Filing. That comment is addressed in Unit IV.C.
Based upon review of the data supporting the petition, EPA corrected the crop definition for “cilantro” to “coriander” and removed proposed tolerances for fresh and dried cilantro leaves. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for S-metolachlor including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with S-metolachlor follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
S-Metolachlor exhibits low acute toxicity via oral, inhalation, and dermal routes of exposure. It causes slight eye irritation, and is non-irritating dermally, but is a dermal sensitizer. In subchronic (metolachlor and S-metolachlor) and chronic (metolachlor) toxicity studies in dogs and rats decreased body weight and body weight gain were the most commonly observed effects. No systemic toxicity was observed when metolachlor was administered dermally. No neurotoxicity studies with metolachlor or S-metolachlor are available. However, there was no evidence of neurotoxic effects in the available toxicity studies. Prenatal developmental studies in the rat and rabbit with both metolachlor and S-metolachlor revealed no evidence of a qualitative or quantitative susceptibility in fetal animals. A 2-generation reproduction study with metolachlor in rats showed no evidence of parental or reproductive toxicity. There are no residual uncertainties with regard to pre- and/or postnatal toxicity. Metolachlor has been evaluated for carcinogenic effects in the mouse and the rat. Metolachlor did not cause an increase in tumors of any kind in mice. In rats, metolachlor caused an increase in benign liver tumors in rats but this increase was seen only at the highest dose tested and was statistically significant compared to controls only in females. There was no evidence of mutagenic or cytogenetic effects
Specific information on the studies received and the nature of the adverse effects caused by S-metolachlor as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD), and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for S-metolachlor used for human risk assessment is discussed in Unit III. of the final rule published in the
1.
Both the acute and chronic analyses assume tolerance-level residues on all crops with established, pending, or proposed tolerances for metolachlor and/or S-metolachlor. In cases where separate tolerance listings occur for both metolachlor and S-metolachlor on the same commodity, the higher value of the two is used in the analyses.
i.
Such effects were identified for S-metolachlor. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture's (USDA) Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), 1994-1996 and 1998. As to residue levels in food, EPA assumed tolerance level residues for all uses, 100 percent crop treated (PCT) for all commodities and default processing factors.
ii.
iii.
iv.
2.
Based on the First Index Reservoir Screening Tool (FIRST), Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) Screening Concentration in Ground Water (SCI-GROW) models and the USGA National Water-Quality Assessment (NAWQA) Program monitoring data, the Agency calculated conservative estimated drinking water concentrations (EDWCs) of S-metolachlor and metolachlor originating from ground water and surface water. EDWCs for metolachlor and metolachlor were calculated for both the parent compound and the ethanesulfonic acid (ESA) and oxanilic acid (OA) degradates. The environmental fate data have been bridged from the racemic mixture (50:50) of metolachlor to the newer isomer (88:12) S-metolachlor, based on similarities in environmental fate behavior. Tier I and Tier II screening models were employed for this assessment. For surface water, PRZM/EXAMS and FIRST Version1.1.1 models were used to estimate drinking water concentrations for the parent S-metolachlor and the ESA and OA degradates, respectively. The SCI-GROW model was used to predict the maximum acute and chronic concentrations present in shallow groundwater. Current NAWQA monitoring data were also used to determine EDWCs. Based on monitoring and modeling data, total EDWCs for peak and average surface water respectively are 219 ppb (78 ppb parent + 48 ppb metolachlor ESA+ 94 ppb metolachlor OA) and 119 ppb (18 ppb parent + 34 ppb metolachlor ESA+ 67 ppb metolachlor OA). Groundwater EDWCs (peak and average) are 126 ppb (33 ppb parent + 64 ppb metolachlor ESA+ 30 ppb metolachlor OA).y67
For acute exposures are estimated to be 219 ppb for surface water and 126 ppb for ground water.
For chronic exposures for non-cancer assessments are estimated to be 110 ppb for surface water and 126 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
For acute dietary risk assessment, the water concentration value of 219 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment (cancer and non-cancer), the water concentration of value 126 ppb was used to assess the contribution to drinking water.
3.
S-Metolachlor is currently registered for the following uses that could result in residential exposures: Residential lawns or turf by professional applicators. Pennant MAGNUM\TM (EPA Reg. No. 100-950) is labeled for use on commercial (sod farm) and residential warm-season turf grasses and other non-crop land including golf courses, sports fields, and ornamental gardens. Since Pennant MAGNUM\TM is not registered for homeowner purchase or use (i.e., used by professional/commercial applicators), the only potential short-term residential risk scenario anticipated is post-application hand-to-mouth exposure of children playing on treated lawns. S-metolachlor incidental oral exposure is assumed to include hand-to-mouth exposure, object-to-mouth exposure and exposure through incidental ingestion of soil. Small children are the population group of concern. Although the type of site that S-metolachlor may be used on varies from golf courses to ornamental gardens, the scenario chosen for risk assessment (residential turf use) represents what the Agency considers the likely upper-end of possible exposure.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
Other than metolachlor, EPA has not found S-metolachlor to share a common mechanism of toxicity with any other substances, and S-metolachlor does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that S-metolachlor does not have a common mechanism of toxicity with other substances.
For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3
i. The toxicity database for S-metolachlor is complete, except for an immunotoxicity and acute and subchronic neurotoxicity studies required under the amendments to the data requirements. However, based on the results of the available toxicity studies, there is no evidence of immunotoxicity or neurotoxicity. Thus, EPA does not expect these data to change the existing POD for risk assessment.
ii. There is no indication that S-metolachlor is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that S-metolachlor causes an increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
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S-metolachlor is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to S-metolachlor. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures including incidental oral exposure from all possible sources: Combined hand-to-mouth, object-to-mouth, and soil ingestion oral exposure result in an aggregate MOE of 860. Because EPA's level of concern for S-metolachlor is a MOE of 100 or below, these MOEs are not of concern.
4.
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Adequate enforcement methodologies (gas chromatography with nitrogen phosphorous detector (GC/NPD) method (Method I) for determining residues in/on crop commodities and a gas chromatography with mass spectroscopy detector (GC/MSD) method (Method II) for determining residues in livestock commodities) are available to enforce the tolerance expression. IR-4 and Syngenta have proposed a high pressure liquid chromatography with mass spectroscopy/mass spectroscopy (HPLC/MS/MS) enantiomer-specific method for the enforcement of the proposed tolerances, Method 1848-01. The method uses a chiral HPLC column to separate out the S-enantiomers (SYN506357 and SYN508500) of the hydrolysis products CGA-37913 and CGA-49751. This method has been determined to be adequate for enforcement purposes.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international
Neither Codex, Canada, or Mexico has established or proposed maximum residue limits (MRLs) for S-metolachlor on cilantro or garden beet leaves.
In the one comment received, the commenter objected to EPA approving use of this chemical and asked that EPA ban further use of this “toxic chemical.” The commenter went on to state that there are several toxic effects attributed to this chemical including evidence of carcinogenicity. The Agency understands the commenter's concerns and recognizes that some individuals believe that certain pesticide chemicals should not be permitted in our food. However, the existing legal framework provided by section 408 of the FFDCA states that tolerances may be set when persons seeking such tolerances have demonstrated that the pesticide meets the safety standard imposed by that statute. When new or amended tolerances are requested for residues of a pesticide in food or feed, the Agency, as is required by section 408 of the FFDCA, estimates the risk of the potential exposure to these residues. The Agency has concluded after this assessment, which includes the consideration of long-term animal studies with metolachlor and S-metolachlor, that there is a reasonable certainty that no harm will result from aggregate (food, water and non-dietary) human exposure to S-metolachlor and that, accordingly, the tolerances that will be established by this rule are “safe.” That assessment included a consideration of S-metolachlor's carcinogenic potential. As discussed in Unit III.A., EPA concluded that any potential cancer risk from S-metolachlor is addressed by the chronic risk assessment. That risk assessment showed no risks of concern.
The Agency does not differentiate between dry and fresh cilantro leaves. Therefore, the Agency is modifying the tolerance proposal and establishing a tolerance for S-metolachlor residues on cilantro, leaves.
Therefore, tolerances are established for residues of S-metolachlor in or on beet, garden, leaves at 1.8 ppm, cilantro, leaves at 8.0 ppm, and coriander, seed at 0.13 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a, and 371.
(a) * * *
(2) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of fludioxonil in or on multiple commodities which are identified and discussed later in this document, associated with pesticide petition (PP) 1E7853 and PP 1E7870. This regulation additionally revises several established tolerances, and removes several established permanent and time-limited tolerances. Interregional Research Project Number 4 (IR-4) and Syngenta Crop Protection, LLC, requested the tolerances associated with PP 1E7853 and PP 1E7870, respectively, under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 15, 2012. Objections and requests for hearings must be received on or before October 15, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0395, is available either electronically through
Laura Nollen, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-7390; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0395 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2012.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0395, by one of the following methods:
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2011-0395 by one of the following methods:
In the
That notice additionally requested to amend established tolerances of fludioxonil in or on avocado from 0.45 ppm to 5.0 ppm; sapote, black from 0.45 ppm to 5.0 ppm; canistel from 0.45 ppm to 5.0 ppm; sapote, mamey from 0.45 ppm to 5.0 ppm; mango from 0.45 ppm to 5.0 ppm; papaya from 0.45 ppm to 5.0 ppm; sapodilla from 0.45 ppm to 5.0 ppm; star apple from 0.45 ppm to 5.0 ppm; longan from 1.0 ppm to 20 ppm; lychee from 1.0 ppm to 20 ppm; pulasan from 1.0 ppm to 20 ppm; rambutan from 1.0 ppm to 20 ppm; Spanish lime from 1.0 ppm to 20 ppm; and tomato from 0.50 ppm to 3.0 ppm. Upon approval of the aforementioned tolerances, the petition finally requested to amend 40 CFR 180.516 by removing the established tolerances for residues of fludioxonil in or on the following raw agricultural commodities: Onion, bulb at 0.2 ppm; onion, green at 7.0 ppm; caneberry subgroup 13A at 5.0 ppm; bushberry subgroup 13B at 2.0 ppm; Juneberry at 2.0 ppm; lingonberry at 2.0 ppm; salal at 2.0 ppm; grape at 1.0 ppm; strawberry at 2.0 ppm; vegetable, fruiting, group 8 at 0.01 ppm; tomatillo at 0.50 ppm; fruit, citrus, group 10 at 10 ppm; fruit, pome, group 11 at 5.0 ppm; and leafy greens subgroup 4A, except spinach at 30 ppm. That notice referenced a summary of the petition prepared on behalf of IR-4 by Syngenta Crop Protection, LLC, the registrant, which is available in the docket,
In the
Additionally, in the
Based upon review of the data supporting the petitions, EPA has revised the proposed tolerance levels and/or has revised the commodity definitions for several commodities. Additionally, EPA has removed several established tolerances and has determined that tolerances should be established in or on several livestock commodities. Finally, the Agency has revised the tolerance expression for all established commodities to be consistent with current Agency policy. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fludioxonil including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fludioxonil follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Fludioxonil is of low acute toxicity and is not a dermal sensitizer. For subchronic and chronic toxicity, the primary effects in the mouse and rat were similar and included decreased body weight and food consumption associated with clinical pathological and histopathological effects in the liver and kidney. In the subchronic dog study, diarrhea was the most sensitive indicator of toxicity. In contrast, in the chronic toxicity study in dogs, decreased body-weight gain in females was the most sensitive indicator of toxicity. Liver toxicity was observed in both dog studies at higher doses.
Fludioxonil is not developmentally toxic in rabbits. In a rat developmental toxicity study at the highest dose tested (HDT), fludioxonil caused an increase in fetal incidence and litter incidence of dilated renal pelvis in the presence of maternal toxicity. There was no quantitative or qualitative evidence of increased susceptibility to rats and rabbits following
EPA determined that fludioxonil poses a negligible cancer risk. This conclusion was based on the fact that cancer studies with fludioxonil only showed marginal evidence of cancer in one sex of one species. There was no evidence of carcinogenicity in mice when tested up to the limited dose 7,000 ppm. There was no evidence of carcinogenicity in male rats, but there was a statistically significant increase, both trend and pairwise, of combined hepatocellular tumors in female rats. The pairwise increase for combined tumors was significant at p = 0.03, which is not a strong indication of a positive effect. Further, statistical significance was only found when liver adenomas were combined with liver carcinomas. Finally, the increase in these tumors was within, but at the high end, of the historical controls. Fludioxonil was not mutagenic in the tests for gene mutations. However, based on the induction of polyploidy in the
Specific information on the studies received and the nature of the adverse effects caused by fludioxonil as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
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ii.
iii.
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2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of fludioxonil for surface water are expected to be 83.8 parts per billion (ppb) for acute exposures and 38.5 ppb for chronic exposures. The EDWCs of fludioxonil for ground water are expected to be 0.2 ppb for acute and chronic exposures.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 83.8 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 38.5 ppb was used to assess the contribution to drinking water.
3.
EPA assessed residential exposure using the following assumptions: Short-term inhalation for residential handler exposure scenarios, including mixing/loading/applying fludioxonil. Residential handler exposures were considered to be short-term only due to the infrequent use patterns associated with homeowner products. Additionally, EPA assessed potential short- and intermediate-term postapplication exposures to toddlers (children 1-2 years old) resulting from physical activities on turf. These included incidental oral exposures from hand-to-mouth, object-to-mouth, and incidental soil ingestion. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
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i. The toxicity database for fludioxonil is complete except for a 90-day inhalation study. The point of departure for assessing risk from inhalation exposure is being extrapolated from an oral study. The uncertainty associated with this extrapolation requires the retention of the 10X FQPA SF for these exposures.
ii. The only potential indicator of neurotoxicity in the fludioxonil toxicity database was convulsions noted in mice following handling at high doses. The convulsions were considered to be agonal in nature. Therefore, EPA has determined that there is no need for a developmental neurotoxicity study or an additional safety factor to account for neurotoxicity.
iii. There is no evidence that fludioxonil results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The acute dietary assessment for females 13-49 years old was unrefined, assuming 100 PCT and tolerance-level
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 310 for children 1-2 years old. Because EPA's level of concern for fludioxonil is a MOE of 100 or below, this MOE is not of concern.
Because the short-term oral and inhalation risks were estimated using the same oral POD, these routes of exposure could be combined for the adult short-term exposure assessment. However, because the level of concern for oral and inhalation routes of exposure are not the same (an MOE of <100 defines the level of concern for incidental oral risk while inhalation risk is defined by an MOE of <1,000) an aggregate risk index (ARI) was required to estimate aggregate risk for adults. Only adults are assumed to be exposed to a combination of oral and inhalation exposures because inhalation exposures for fludioxonil may occur only as to those who apply the pesticide. EPA identifies ARIs at or below one as a risk estimate of concern. The short-term aggregate ARI exposure estimates to fludioxonil residues for adults are 9.5 for the general population and 11 for adults 50 years and older.
4.
Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in an aggregate MOE of 105 for children 1-2 years old. Because EPA's level of concern for fludioxonil is a MOE of 100 or below, this MOE is not of concern.
5.
6.
Adequate high-performance liquid chromatography/ultraviolet light detector (HPLC/UV) methods (Syngenta Methods AG-597 and AG-597B) are available for enforcing tolerances for residues of fludioxonil in or on plant commodities. An adequate liquid chromatography, tandem mass spectrometry (LC-MS/MS) method (Analytical Method GRM025.03A) is available for enforcing tolerances for residues of fludioxonil in or on livestock commodities.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
There are no Codex MRLs established for the following tolerances associated with these petitions: Ginseng; tropical fruit commodities; onion, green, subgroup 3-07B; leaf petioles crop subgroup 4B; and fat of cattle, goat, horse, and sheep. The following United States tolerances being established by this action are harmonized with comparable Codex MRLs: Caneberry subgroup 13-07A at 5.0 ppm; bushberry subgroup 13-07B at 2.0 ppm; and fruit, pome, group 11-10 at 5.0 ppm; onion, bulb, subgroup 3-07A at 0.50 ppm; fruit, small vine climbing, except fuzzy
The following United States tolerances being established by this action cannot be harmonized with the comparable Codex MRL: Tomato; leafy greens subgroup 4A; vegetable, tuberous and corm, subgroup 1C; fruit, citrus, group 10-10; and fruit, pome, group 11-10. The residue data and use patterns in the United States for these commodities support a higher tolerance value than what is established by Codex. The Codex has proposed, though has not yet approved, MRLs on citrus fruits at 10 ppm and pome fruits at 5.0 ppm that would result in harmonization with the United States for these commodities.
Finally, EPA is establishing a tolerance on vegetable, fruiting, group 8-10, except tomato that is not harmonized with Codex MRLs on eggplant at 0.3 ppm or sweet peppers at 1 ppm, which are members of the fruiting vegetable crop group. The United States tolerance was established as the result of a joint review of residue field trial data with Canada's Pest Management Regulatory Agency (PMRA). Based on the EPA and PMRA review of the data supporting the petition, the resulting tolerance for vegetable, fruiting, group 8-10, except tomato is 0.5 ppm. This tolerance cannot be harmonized with the Codex MRLs on eggplant at 0.3 ppm and sweet peppers at 1 ppm since the MRLs are established for two individual members of the fruiting vegetable crop group at different levels.
EPA received one comment to the notice of filing for PP 1E7870, which requested additional information about the nature of the residue and the adverse effects noted from exposure to fludioxonil. A summary of information about the nature of the residue and the adverse effects from fludioxonil was available to the commenter in the docket at the time of the notice of filing. That information, as well as specific information on the nature of the residue, including physical and chemical characteristics, and the adverse effects caused by fludioxonil from the toxicity studies can be found in the supporting and related material at
Additionally, the Agency received one comment to the May 2, 2012 notice of filing for PP 1E7853. The commenter raised concerns about the proposal to increase an existing tolerance for fludioxonil 5-10 times the current level and further stated that EPA would need to amend the protocol and develop a completely new method. In response to these concerns, EPA notes that the appropriate residue field trial data to support the amended use pattern for a post-harvest use was submitted to the Agency. From the risk assessment for the action, which included review of the field trial data supporting petitioned-for tolerance amendments, EPA has determined that the tolerance levels to be established by the Agency are appropriate and safe.
Based on the data supporting the petitions, EPA revised the proposed tolerances on several commodities, as follows: Ginseng from 3.0 ppm to 4.0 ppm; vegetable, fruiting, group 8-10, except tomato from 0.7 ppm to 0.50 ppm; tomato from 3.0 ppm to 5.0 ppm; pineapple from 8.0 ppm to 20 ppm; and leaf petioles crop subgroup 4B from 14 ppm to 15 ppm. Upon review of the data supporting the petitions, EPA also determined that several tolerances should be established on livestock commodities, as follows: Milk at 0.01 ppm; cattle, goat, horse, and sheep meat at 0.01 ppm; meat byproducts of cattle, goat, horse, and sheep at 0.05 ppm; and fat of cattle, goat, horse, and sheep at 0.05 ppm. The Agency revised these tolerance levels based on analysis of the residue field trial data using the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures.
Additionally, EPA revised the onion, bulb, subgroup 3-07A from 0.20 ppm to 0.50 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F from 1.0 ppm to 2.0 ppm; and berry, low growing, subgroup 13-07G, except cranberry from 2.0 ppm to 3.0 ppm, in order to align with the Codex MRLs associated with these tolerances.
EPA also removed the established tolerance in or on vegetable, leafy, except brassica, group 4 at 0.01 ppm, as it will be superseded by tolerances on leafy greens subgroup 4A at 30 ppm and leaf petioles subgroup 4B at 15 ppm. Similarly, EPA removed the established tolerance on vegetable, bulb, group 3 at 0.02 ppm, as the tolerance will be superseded by tolerances on bulb onion subgroup 3-07A at 0.50 ppm and green onion subgroup 3-07B at 7.0 ppm. In order to clarify the established vegetable, root and tuber, group 1 tolerance at 0.02 ppm, the Agency revised the entry to beet, sugar at 0.02 ppm. This change has been made because all other commodity members currently in crop group 1 will be superseded by tolerances in or on vegetable, root, except sugar beet, subgroup 1B at 0.75 ppm and vegetable, tuberous and corm, subgroup 1C at 6.0 ppm. EPA also revised the proposed commodity definitions to reflect the correct designation for fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F and dragon fruit.
Finally, the Agency has revised the tolerance expression to clarify:
1. That, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of fludioxonil not specifically mentioned; and
2. That compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression.
Therefore, tolerances are established for residues of fludioxonil, (4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1
Tolerances are established for residues of fludioxonil, (4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1-
This regulation additionally removes established tolerances in or on onion, bulb; onion, green; caneberry subgroup 13A; bushberry subgroup 13B; Juneberry; lingonberry; salal; grape; strawberry; vegetable, fruiting group 8; tomatillo; fruit, citrus, group 10; fruit, pome, group 11; leafy green subgroup 4A, except spinach; vegetable, tuberous and corm, except potato, subgroup 1D; vegetable, leafy, except brassica, group 4; and vegetable, bulb, group 3. This regulation also removes the time-limited tolerances in or on starfruit and pineapple. Finally, this regulation revises the established tolerance on vegetable, root and tuber, group 1 at 0.02 ppm to beet, sugar at 0.02 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) Tolerances are established for residues of the fungicide fludioxonil, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only the sum of fludioxonil, 4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1-
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the White Hake Trimester Total Allowable Catch (TAC) Area to all common pool vessels fishing with trawl gear, sink gillnet gear, or longline/hook gear for the remainder of Trimester 1, through August 31, 2012. This action is necessary to prevent the common pool fishery from exceeding its Trimester 1 TAC or its annual catch limit for white hake. This rule is expected to slow the catch rate of white hake in the common pool fishery for the remainder of Trimester 1.
Effective August 15, 2012, through 2400 hours, August 31, 2012.
Sarah Heil, Fishery Policy Analyst, 978-281-9257, Fax 978-281-9135.
Regulations governing the NE multispecies fishery are found at 50 CFR part 648, subpart F. Beginning in fishing year (FY) 2012, the common pool's annual catch limit for each stock is apportioned into trimester total allowable catches (TACs). The regulations at § 648.82(n) require the Regional Administrator to close the Trimester TAC Area for a stock when available information supports a determination that 90 percent of the Trimester TAC is projected to be caught. The Trimester TAC Area for a stock will close to all common pool vessels fishing with gear capable of catching that stock for the remainder of the trimester. Any overages of a trimester TAC will be deducted from Trimester 3, and any overages of the common pool's annual catch limit will be deducted from the common pool's catch limit the following fishing year. Any uncaught portion of the Trimester 1 and Trimester 2 TAC will be carried over into the next trimester. Any uncaught portion of the common pool's annual catch limit may not be carried over into the following fishing year.
The FY 2012 common pool catch limit for white hake is 26 mt (57,320 lb). The Trimester 1 (May 1 through August 31) TAC is 10 mt (22,046 lb). Based on the best available data which includes vessel trip reports (VTRs), dealer reported landings, and vessel monitoring system (VMS) information, NMFS projected that 90 percent of the Trimester 1 TAC for white hake had been harvested on August 4, 2012. Therefore, Effective August 15, 2012, the White Hake Trimester TAC Area is closed for the remainder of Trimester 1, through August 31, 2012, to all common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear. The White Hake Trimester TAC Area will reopen to common pool vessels fishing with trawl, sink gillnet, and longline/hook gear at the beginning of Trimester 2, at 0001 hours, September 1, 2012.
This action is required by 50 CFR part 648, and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. This action closes the White Hake Trimester TAC Area for common pool vessels fishing with trawl gear, sink gillnet gear, and longling/hook gear through August 31, 2012. The regulations at § 648.82 require this action to ensure that the common pool fishery does not exceed its catch limits for white hake in fishing year 2012. The catch data indicating that 90 percent of the Trimester 1 TAC for white hake has been caught only recently became available. If implementation of this closure is delayed to solicit prior public comment, the white hake Trimester 1 TAC will be exceeded, thereby undermining the conservation objectives of the Fishery Management Plan. Any overage of the Trimester 1 TAC must be deducted from the Trimester 3 TAC, and any overage of the total catch limit in FY 2012 must be deducted from the FY 2013 catch limit. This would have adverse economic consequences on common pool vessels. The AA further finds, pursuant to 5
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; apportionment of reserves; request for comments.
NMFS apportions amounts of the non-specified reserve to the initial total allowable catch of arrowtooth flounder in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the fisheries to continue operating. It is intended to promote the goals and objectives of the fishery management plan for the Bering Sea and Aleutian Islands management area.
Effective August 10, 2012, through 2400 hrs, Alaska local time, December 31, 2012. Comments must be received at the following address no later than 4:30 p.m., Alaska local time, August 25, 2012.
You may submit comments on this document, identified by NOAA-NMFS 2012-0150, by any of the following methods:
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•
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Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.
Steve Whitney, 907-586-7269.
NMFS manages the groundfish fishery in the (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2012 initial total allowable catch (ITAC) of arrowtooth flounder in the BSAI was established as 21,250 metric tons (mt) by the final 2012 and 2013 harvest specifications for groundfish of the BSAI (77 FR 10669, February 23, 2012). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITAC for arrowtooth flounder in the BSAI needs to be supplemented from the non-specified reserve in order to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.
Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 1,075 mt to the arrowtooth flounder ITAC in the BSAI. This apportionment is consistent with § 679.20(b)(1)(i) and does not result in overfishing of a target species because the revised ITAC is equal to or less than the specifications of the acceptable biological catch in the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012).
The harvest specification for the 2012 arrowtooth flounder ITAC included in the harvest specifications for groundfish in the BSAI is revised as follows: 22,325 mt for arrowtooth flounder in the BSAI.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the arrowtooth flounder fishery in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 24, 2012.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801,
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Notice of proposed rulemaking.
This document proposes to amend the U.S. Customs and Border Protection (CBP) regulations to set forth the prohibitions and conditions that are applicable to the importation and exportation of rough diamonds pursuant to the Clean Diamond Trade Act, as implemented by the President in Executive Order 13312 dated July 29, 2003, and the Rough Diamonds Control Regulations (RDCR) issued by the Office of Foreign Assets Control of the U.S. Department of the Treasury. In addition to restating pertinent provisions of the RDCR, the proposed amendments would clarify that any U.S. person exporting from or importing into the United States a shipment of rough diamonds must retain for a period of at least five years a copy of the Kimberley Process Certificate that currently must accompany such shipments and make the copy available for inspection when requested by CBP. The document also proposes to require formal entry for shipments of rough diamonds.
Comments must be received on or before October 15, 2012.
You may submit comments, identified by docket number, by
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Brian Barulich, Regulations and Rulings, Office of International Trade, (202) 325-0059.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rulemaking. Comments that will provide the most assistance to CBP will reference a specific portion of the proposed rulemaking, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See
In response to the role played by the illicit trade in diamonds in fueling conflict and human rights violations in certain areas of the world, and to differentiate between the trade in conflict diamonds and the trade in legitimate diamonds, the United States and numerous other countries announced in the Interlaken Declaration of November 5, 2002, the launch of the Kimberley Process Certification Scheme (KPCS) for rough diamonds. Under the KPCS, participating countries prohibit the importation of rough diamonds from, or the exportation of rough diamonds to, a non-participant and require that shipments of rough diamonds from or to a participating country be controlled through the KPCS. The U.S. Secretary of State is responsible for providing an up-to-date listing of all participants in the KPCS. The most recent listing of participants was published in the
The Clean Diamond Trade Act (the Act), Public Law 108-19, 117 Stat. 631 (19 U.S.C. 3901
On July 29, 2003, the President issued Executive Order 13312 (published in the
CBP notes that persons importing into or exporting from the United States a shipment of rough diamonds must comply with the requirements of CBP, the Office of Foreign Assets Control (OFAC) of the Department of the Treasury (part 592 of title 31 of the Code of Federal Regulations (31 CFR part 592)), and the U.S. Census Bureau (15 CFR part 30). Such persons should also be aware of any relevant Internet postings, guidance documents, or
OFAC, acting pursuant to Executive Order 13312 and delegated authority, published in the
Among the requirements set forth in the RDCR is that all shipments of rough diamonds imported into, or exported from, the United States must be accompanied by an original Kimberley Process Certificate.
The U.S. Census Bureau issued notices on December 12, 2005, and April 3, 2007, respectively entitled “Notice of Request for Faxed Submission of Kimberley Process Certificates” and “Revised Notice of Request for Faxed Submission of Kimberley Process Certificates,” requiring importers, brokers, and parties involved in the export of rough diamonds to immediately fax their Kimberley Process Certificates (including voided certificates) to the U.S. Census Bureau upon clearance of their shipments into the commerce of the United States by CBP or upon export of their shipments from the United States, as applicable.
CBP is proposing to amend the CBP regulations to set forth the prohibitions and conditions that are applicable to the importation into, and the exportation from, the United States of rough diamonds pursuant to the Act, Executive Order 13312, and the RDCR. This document proposes to add a new § 12.152 to 19 CFR part 12 to set forth these prohibitions and conditions.
Because CBP (along with ICE, OFAC, and the U.S. Department of State) is involved in the administration and enforcement of the import and export requirements relating to rough diamonds, CBP believes that it is appropriate and in the interests of the trading community to restate in the CBP regulations certain of the entry, export, and recordkeeping requirements currently set forth in the RDCR. The RDCR, at 31 CFR 592.301, requires any person importing a shipment of rough diamonds to have the original Kimberley Process Certificate at the time of importation and to present it if demanded by CBP. The RDCR further requires the ultimate consignee to retain the original Certificate for at least five years from the date of importation and to present it to CBP upon demand.
In accordance with section 5(b) of the Act, CBP is also proposing to require any U.S. persons exporting from the United States a shipment of rough diamonds to retain a copy of the Kimberley Process Certificate accompanying each shipment for a period of at least five years from the date of exportation and make the copy available for examination at the request of CBP.
CBP believes that these recordkeeping requirements will assist it in verifying whether importations of rough diamonds are properly controlled by the KPCS. The legal authority for these proposed requirements are discussed in further detail in the following discussion of each of the paragraphs in proposed new § 12.152, and new § 163.2(b), and the amendments to the Interim (a)(1)(A) list in section IV of the Appendix to part 163.
Paragraph (a) provides a brief summary of the KPCS, the Act, Executive Order 13312, and the RDCR. Paragraph (a) also indicates that persons importing into, or exporting from, the United States a shipment of rough diamonds must comply with the requirements of CBP, OFAC, and the U.S. Census Bureau.
Paragraph (b) sets forth certain definitions of terms derived from 19 U.S.C. 3902, section 3 of the Act, Annex I of the Kimberley Process Certification Scheme, and subpart C of the RDCR (subpart C of 31 CFR part 592).
Paragraph (c) reflects the requirement in § 592.301 of the RDCR (31 CFR 592.301) that a shipment of rough diamonds imported into, or exported from, the United States, must be accompanied by an original Kimberley Process Certificate.
Pursuant to the authority provided in 19 U.S.C. 1484 and 1498(a)(1)(B), paragraph (d) requires formal entry when importing a shipment of rough diamonds.
Pursuant to the authority provided in 19 U.S.C. 1484(a)(1)(A), paragraph (e) requires brokers, importers, and filers making entry of a shipment of rough diamonds into the United States to either submit through CBP's Automated Broker Interface (ABI) system the unique identifying number of the Kimberley Process Certificate accompanying the shipment or, for non-ABI entries, indicate the certificate number on the CBP Form 7501, Entry Summary, on each applicable line item.
Paragraph (f)(1) reflects the requirement in 31 CFR 592.301 that the ultimate consignee of a shipment of rough diamonds imported into the United States must retain the original Kimberley Process Certificate for a period of at least five years from the date of importation and must present the certificate to CBP upon request.
Paragraph (f)(2) reflects the requirement that the U.S. person importing into the United States a shipment of rough diamonds must retain a copy of the Kimberley Process Certificate for a period of at least five years from the date of importation and present the copy to CBP upon request, pursuant to section 5(b) of the Act as well as § 163.4, CBP regulations (19 CFR 163.4), which provides that (with certain exceptions not applicable here) any record required to be made, kept, and rendered for examination and inspection by CBP under § 163.2 or any other provision of this chapter must be kept for five years from the date of entry, if the record relates to an entry, or five years from the date of the activity which required creation of the record. Section 163.2 identifies importers as persons who must maintain records and render those records for examination by CBP. The Kimberley Process Certificate is a record required for the entry of merchandise, within the meaning of 19 U.S.C. 1509(a)(1)(A) and 19 CFR 163.1(a).
Similarly, paragraph (f)(3) requires any U.S. person exporting a shipment of rough diamonds from the United States to retain a copy of the Kimberley Process Certificate for a period of at least five years from the date of exportation and to present the copy to CBP upon request. This provision is being proposed in accordance with section 5(b) of the Act.
The requirements set forth in paragraphs (f)(2) and (3) are further supported by §§ 501.601 and 592.501 of the OFAC regulations (31 CFR 501.601 and 592.501), which provide, in pertinent part, that every person engaging in any transaction subject to the RDCR and other provisions of 31 CFR chapter V shall keep a full and accurate record of each such transaction engaged in, and such record shall be available for examination for at least five years after the date of such transaction.
In addition, CBP is proposing to amend part 163 by adding to § 163.2(c) a paragraph stating that any U.S. person exporting from the United States any rough diamonds must retain a copy of the Kimberley Process Certificate accompanying each shipment for a period of at least five years from the date of exportation. Section 163.2(c) would also state that failure to retain such records for at least five years may subject the exporter to penalties under 19 U.S.C. 3907.
CBP is also proposing to amend the Interim (a)(1)(A) list in Section IV of the Appendix to part 163 of 19 CFR to add the Kimberley Process Certificate to the list of documents that are required for the entry of special categories of merchandise. Finally, this document proposes to amend the list of control numbers assigned to information collections by the Office of Management and Budget (OMB) (pursuant to the Paperwork Reduction Act), which are set forth in 19 CFR 178.2, to add the information collections used by CBP to determine whether importations of rough diamonds are properly controlled by the KPCS.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this regulation.
The proposed rule seeks to increase CBP's ability to verify whether importations or exportations of rough diamonds are in compliance with the KPCS. OFAC published the RDCR (31 CFR part 592) requiring the ultimate consignee to retain the original of the Kimberley Process Certificate. The proposed amendments clarify that any U.S. person exporting from or importing into the United States a shipment of rough diamonds must retain a copy of the Kimberley Process Certificate for a period of five years and make this copy available for inspection at the request of CBP or face penalties pursuant to 19 U.S.C. 1509 or 3907. CBP believes the costs of retaining a copy of the Kimberley Process Certificate for five years and producing the copy to CBP upon request to be negligible.
This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601
The proposed rule seeks to increase CBP's ability to verify whether importations or exportations of rough diamonds are in compliance with the KPCS. OFAC published the RDCR (31 CFR part 592) requiring the ultimate consignee to retain the original of the Kimberley Process Certificate, but not requiring this of the importer or the exporter. The proposed amendments clarify that any U.S. person exporting from or importing into the United States a shipment of rough diamonds must retain a copy of the Kimberley Process Certificate for a period of five years and make this copy available for inspection at the request of CBP or face penalties pursuant to 19 U.S.C. 1509 or 3907. Given that this rule will impose a penalty only for noncompliance, it is not feasible to estimate the number of small entities which could be affected by this rule. CBP does not believe any additional professional expertise will be required to adhere to this requirement, as the Kimberley Process Certificate will only need to be stored and presented for examination upon request of CBP. CBP believes the costs of retaining a copy of the Kimberley Process Certificate for five years and providing the copy to CBP upon request to be negligible. Due to these low compliance costs, CBP subject matter experts believe this regulation will neither increase non-compliance nor result in a substantial number of small entities receiving penalties. CBP did not consider alternatives to the proposed rule for small entities because it does not impose any significant additional operational or labor costs on small
Because the penalty for noncompliance may be greater than $500 (in 1980 dollars), constituting a significant impact for a small entity, the economic impact of noncompliance with this would be considered significant. However, as discussed above CBP subject matter experts do not believe this rule will increase noncompliance with the KPCS for small entities. Thus, CBP does not believe this rule will have a significant impact on a substantial number of small entities. CBP welcomes any comments regarding this assessment. If CBP does not receive any comments contradicting this finding, CBP will certify that this rule will not have a significant economic impact on a substantial number of small entities at the final rule stage.
Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and an individual is not required to respond to, a collection of information unless it displays a valid OMB control number. The collections of information contained in these regulations are provided for by OMB control number 1505-0198, to cover the requirements concerning CBP Form 7501, and by OMB control number 1651-0076, to cover the recordkeeping requirement.
This document is being issued in accordance with § 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/her delegate) to approve regulations related to certain customs revenue functions.
Customs duties and inspection, Economic sanctions, Entry of merchandise, Foreign assets control, Exports, Imports, Prohibited merchandise, Reporting and recordkeeping requirements, Restricted merchandise, Sanctions.
Administrative practice and procedure, Customs duties and inspection, Exports, Imports, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Imports, Reporting and recordkeeping requirement.
For the reasons set forth above, parts 12, 163, and 178 of title 19 of the Code of Federal Regulations (19 CFR parts 12, 163, and 178) are proposed to be amended as set forth below.
1. The general authority citation for part 12, CBP regulations, continues to read, and a new specific authority citation for § 12.152 is added to read, as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.
Section 12.152 also issued under 19 U.S.C. 1484, 1498; the Clean Diamond Trade Act (Pub. L. 108-19, 117 Stat. 631 (19 U.S.C. 3901
2. In part 12, a new § 12.152 is added to read as follows:
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(i) Any United States citizen or any alien admitted for permanent residence into the United States;
(ii) Any entity organized under the laws of the United States or any jurisdiction within the United States (including its foreign branches); and
(iii) Any person in the United States.
(c)
(d)
(e)
(f)
(2)
(3)
3. The specific authority citation for part 163 is revised and the general authority citation continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
4. Section 163.2(c) is revised to read as follows:
(c)
5. The Appendix to part 163 is amended by adding a new listing under § IV in numerical order to read as follows:
IV. * * *
6. The authority citation for part 178 continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 1624, 44 U.S.C. 3501
7. Section 178.2 is amended by adding a new listing to the table in numerical order to read as follows:
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations relating to the disclosure of return under section 6103(1)(21) of the Internal Revenue Code, as enacted by the Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act of 2010.
The public hearing, originally scheduled for August 31, 2012 at 10 a.m. is cancelled.
Oluwafunmilayo Taylor of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration) at (202) 622-7180 (not a toll-free number).
A notice of proposed rulemaking and a notice of public hearing that appeared in the
The public comment period for these regulations expired on July 30, 2012. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Thursday, August 9, 2012, no one has requested to speak. Therefore, the public hearing scheduled for August 31, 2012, is cancelled.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to promulgate a Reservation-specific Federal Implementation Plan in order to regulate emissions from oil and natural gas production facilities located on the Fort Berthold Indian Reservation located in North Dakota. The proposed Federal Implementation Plan includes basic air quality regulations for the protection of communities in and adjacent to the Fort Berthold Indian Reservation. The proposed Federal Implementation Plan requires owners and operators of oil and natural gas production facilities to reduce emissions of volatile organic compounds emanating from well completions, recompletions, and production and storage operations. This Federal Implementation Plan would be implemented by EPA, or a delegated Tribal Authority, until replaced by a Tribal Implementation Plan. EPA is issuing an interim final rule for a Reservation-specific Federal Implementation Plan, concurrently with this proposed rule, for a Reservation-specific Federal Implementation Plan and any additional information can be found within the interim final rule under the same title.
Written comments must be received on or before October 15, 2012.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2012-0479, by one of the following methods:
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Deirdre Rothery, U. S. Environmental Protection Agency, Region 8, Air Program, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6431,
For further information on this proposed rule, please see the interim final action, of the same title, which is located in the Rules section of this
Note that Docket Number EPA-R08-OAR-2012-0479 is being used for both the interim final rule and the proposed rule.
EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time.
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
Under the Toxic Substances Control Act (TSCA), EPA is proposing to amend a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances to add PFAS chemical substances that have completed the TSCA new chemical review process but have not yet commenced production or import, and to designate (for all listed PFAS chemical substances) processing as a significant new use. EPA is also proposing a SNUR for long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances that would designate manufacturing, importing, or processing for use as part of carpets or for treating carpet (
Comments must be received on or before October 15, 2012.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0268, by one of the following methods:
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You may be potentially affected by this action if you manufacture, process, or import any of the chemical substances listed in Table 4 of this unit.
Potentially affected entities may include, but are not limited to:
• Manufacturers or importers of one or more of subject chemical substances (North American Industrial Classification System (NAICS) codes 325 and 324110);
• Carpet and rug mills (NAICS code 314110),
• Fiber, yarn, and thread mills (NAICS code 31311),
• Home furnishing merchant wholesalers (NAICS code 423220), and
• Carpet and upholstery cleaning services (NAICS code 561740).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5, 40 CFR 721.9582, and proposed 40 CFR 721.10536. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after September 14, 2012 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
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Under section 5(a)(2) of TSCA, EPA is proposing to amend a SNUR at § 721.9582 for PFAS chemical substances to add PFAS chemical substances that have completed the TSCA new chemical review process but have not yet commenced production or import, and to designate (for all listed PFAS chemical substances) processing as a significant new use. EPA is also proposing a SNUR for LCPFAC chemical substances that would designate manufacturing, importing, or processing for use as part of carpets or for treating carpet (
In this proposal, the term PFAS refers to a general category of perfluorinated sulfonate chemical substances of any chain length. The PFAS chemical substances for which EPA is proposing to modify an existing SNUR are currently listed in § 721.9582 in paragraph (a)(1). The PFAS chemical substances that EPA is proposing to add to an existing SNUR would be added to this list. All of these chemical substances are collectively referred to in this proposed rule as perfluoroalkyl sulfonates, or PFAS chemical substances.
The term LCPFAC refers to the long-chain category of perfluorinated carboxylate chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons. The category of LCPFAC chemical substances also includes the salts and precursors of these perfluorinated carboxylates. See Unit IV.A for the specific definition of the LCPFAC category.
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). As described in Unit II.C., the general SNUR provisions are found at 40 CFR part 721, subpart A.
General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. However, EPA is proposing that the articles exemption at 40 CFR 721.45(f) would not apply to imports of LCPFAC chemical substances as part of carpets under this proposed SNUR. As a result, persons subject to the provisions of this proposed rule would not be exempt from significant new use reporting if they import LCPFAC chemical substances as part of carpets. However, EPA is proposing that the articles exemption remain in effect for persons who process chemical substances as part of an article because, with respect to carpets, existing stocks may still contain LCPFAC substances. Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of Premanufacture Notices (PMNs) under TSCA section 5(a)(1)(A). In particular, these requirements include the information submissions requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6 or 7 to control the activities on which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B.
The PFAS chemical substances for which EPA is proposing to add additional significant new uses are already listed in § 721.9582 in paragraph (a)(1). The PFAS chemical substances that EPA is proposing to add to the existing PFAS SNUR are the subjects of PMN Case Numbers P-83-0126, P-90-0110, P-94-1508, P-94-1509B, P-98-0809, P-99-0296, and P-01-0035. The PMN submitters for these chemicals never commenced manufacturing or import of these chemicals. EPA considers that the commencement of manufacturing, import, or processing of these chemicals would thus significantly increase the magnitude and duration of exposure to humans and the environment. Given the structural similarity of these chemicals to the PFAS chemicals covered under 40 CFR 721.9582 and EPA's health and environmental concerns associated with these chemicals, EPA has concluded any manufacturing, import, or processing for any use of these uncommenced PFAS chemicals would be a significant new use and therefore, action on these PFAS chemicals is warranted.
All of these chemical substances are referred collectively in this proposed rule as perfluoroalkyl sulfonates, or PFAS chemical substances.
On October 18, 2000, EPA published in the
The Agency previously determined that the 271 PFAS chemical substances identified in 40 CFR 721.9582(a)(1) were no longer being manufactured or imported for any use in the United States, other than the uses listed under § 721.9582 (a)(3), (a)(4), and (a)(5) (67 FR 72858 and 72 FR 57225). In addition, since those chemicals are no longer manufactured or imported other than for the listed uses, EPA concluded that those chemical substances are also no longer processed other than for those listed uses.
PFAS chemical substances included in § 721.9582 were previously used in a variety of products, which can be divided into three main use categories: Surface treatments, paper protection, and performance chemicals (Ref. 6). In the past, PFAS chemical substances in the performance chemicals category were used in a wide variety of specialized industrial, commercial, and consumer applications. Specific applications included fire fighting foams, mining and oil well surfactants, acid mist suppressants for metal plating and electronic etching baths, alkaline cleaners, floor polishes, inks, photographic film, denture cleaners, shampoos, chemical intermediates, coating additives, carpet spot cleaners, and as an insecticide in bait stations for ants (Ref. 7). In 2000, the domestic production volume of the PFAS chemical substances containing eight carbons for the performance chemicals use category was estimated to be approximately 1.5 million pounds (Ref. 16).
PFAS chemical substances were also used for treating textiles, fabrics and carpet. These upholstery and fabric protectors were designed to protect rugs and carpets against soiling and restore their original look. Prior to 2003, these formulations were based on PFOS compounds, which contain eight perfluorinated carbons. After 2003, however, 3M, the primary manufacturer of these chemical substances, reformulated the product to be based on perfluorobutane sulfonate (PFBS) compounds containing four
The PFAS chemical substances that EPA is proposing to add to the existing PFAS SNUR are chemical substances that have completed the TSCA new chemical review process but have not yet commenced production or import. Any person who commences the manufacture or import of a new chemical substance for which that person previously submitted a section 5(a) notice must submit a notice of commencement of manufacture or import (40 CFR 720.102). EPA has not received any notices of commencements for these chemical substances, and there is currently no production or import of these chemical substances. If commenced, these chemical substances could be used for the PFAS uses described above, significantly increasing the magnitude and duration of exposure to humans and the environment, constituting a significant new use.
PFAS chemical substances degrade ultimately to perfluoroalkylsulfonic acid (PFASA), which can exist in the anionic form under environmental conditions. Further degradation of PFASA is not observed under normal environmental conditions. PFASA is highly persistent in the environment and has a tendency to bioaccumulate (Refs. 8 and 9). PFASA can continue to be formed by any PFAS containing chemical substances introduced into the environment.
Studies have found PFAS chemical substances containing five to fourteen carbons (C5-C14) in the blood of the general human population, as well as in wildlife, indicating that exposure to these chemical substances is widespread (Refs. 1, 2, and 10). The widespread presence of PFAS chemical substances in human blood samples nationwide suggests other pathways of exposure, possibly including the release of PFAS treated articles. EPA's Office of Research and Development (ORD) has conducted research on 116 articles of commerce documenting that PFCs contained in articles of commerce have the potential to be released from those articles and be transformed into PFAC (Ref. 1).
Biological sampling has shown the presence of certain perfluoroalkyl compounds in fish and in fish-eating birds across the United States and in locations in Canada, Sweden, and the South Pacific (Ref. 2). The wide distribution of the chemical substances in high trophic levels is strongly suggestive of the potential for bioaccumulation and/or bioconcentration.
Based on currently available information, EPA believes that while all PFAS chemical substances are expected to persist, the length of the perfluorinated chain may also have an effect on bioaccumulation and toxicity, which are also characteristics of concern for these chemical substances. PFAS chemical substances with longer carbon chain lengths may be of greater concern than those with shorter chain lengths (Refs. 11, 12, and 13).
The hazard assessment published by the Organization for Economic Cooperation and Development (OECD) (Ref. 15) concluded that perfluorooctyl sulfonates (PFOS) are persistent, bioaccumulative and toxic to mammalian species. While most studies to date have focused primarily on PFOS, structure-activity relationship analysis indicates that the results of those studies are applicable to the entire category of PFAS chemical substances, which includes PFOS. Available test data have raised concerns about their potential developmental, reproductive, and systemic toxicity (Refs. 1, 2, and 3).
For a more detailed summary of background information (
LCPFAC chemical substances are synthetic chemicals that do not occur naturally in the environment. The LCPFAC chemical substances are identified as follows, where n > 5 or m > 6:
This category definition of LCPFAC, based on the chemical structures above, refers to a large group of chemical substances containing perfluorooctanoic acid (PFOA) and its higher homologues. The category also includes the salts and precursors of these chemical substances. The precursors may be simple derivatives of PFOA and higher homologues or polymers that contain or may degrade to PFOA or higher homologues. These precursors include certain fluoropolymers and all fluorotelomers.
Currently, DuPont is the sole manufacturer of PFOA in the United States. In addition, PFOA, except possibly as part of articles, is not imported into the United States with the exception of the product manufactured by DuPont facilities overseas. According to EPA's 2006 Inventory Update Reporting database, the aggregated production volume of PFOA and ammonium perfluorooctanoate (APFO) was less than 500,000 pounds for each. APFO is the ammonium salt of PFOA, which dissociates to PFOA in water (Ref. 1).
Fluoropolymers such as polytetrafluoroethylene (PTFE), which may contain some PFAC contamination, or that use PFOA as an emulsion stabilizer in aqueous dispersions, are included in the LCPFAC definition and have a large U.S. market. The wire and cable industry is one of the largest segments of the fluoropolymer market, accounting for more than 35 percent of total U.S. fluoropolymer use. Apparel makes up about 10 percent of total fluoropolymer use, based on total reported production volume. Fluoropolymers are used in a wide variety of mechanical and industrial components, such as plastic gears, gaskets and sealants, pipes and tubing, O-rings, and many other products. Total U.S. demand for fluoropolymers in 2004 was between 50,000 and 100,000 metric tons. The United States accounted for less than 25 percent of the world consumption of PTFE in 2007, and between 25 and 50 percent of the world consumption of other fluoropolymers. PTFE is the most commonly used fluoropolymer, and the United States
Fluorotelomers, oligomers of tetrafluoroethylene, are relatively small functionalized molecules used to make polymers. World-wide production of fluorotelomer-based polymers (FTBP), was estimated at 20 million pounds in 2006. Fluorotelomer monomers and FTBP are included in the LCPFAC category definition as potential LCPFAC precursors. The United States accounts for more than 50 percent of world-wide fluorotelomer/FTPB production. Textiles and apparel account for approximately 50 percent of the volume, with carpet and carpet care products accounting for the next largest share in consumer product uses. Polymeric coatings, including those for paper products, are the third largest category of consumer product uses (Ref. 1). Articles tested and found to contain the highest levels of PFAC were carpet and carpet treatment products, various types of apparel, home textiles, thread sealant tape, floor wax and other sealants, and food contact paper and paper coatings.
LCPFAC chemical substances, including FTBP, were used in the textile market because of their thermo-stability, ability to adapt to a variety of surface characteristics, low refractive indexes, low dielectric constants, and high chemical stability. FTBP are used as soil retardants and stain repellents in carpets. FTBP are used to treat textiles which cannot be laundered, including carpets, by preventing or reducing the adhesion of liquid or solid contaminants to the textile fibers. Fluorotelomer carpet treatments are incorporated in polymers including fluorinated polyurethanes, fluorinated vinyl polymers and fluorinated acrylate and methacrylate polymers. Most of these fluorinated polymers have a non-fluorinated backbone with fluorinated alkyl chains which provide the desired physical characteristics. Fluorinated polyurethanes are noted to be tough but resilient and can withstand foot traffic on carpets (Ref. 18).
PFAS and LCPFAC chemical substances were used in carpets to impart stain, soil, and grease repellant properties (Ref. 18). There are four typical scenarios for chemical application that could lead to the presence of these chemical substances in carpet products, and this SNUR would apply to all of them. First, these chemical substances could be applied to carpet at a carpet and rug mill during the manufacturing process. Second, these chemical substances could be applied to carpet after the manufacturing process at a separate finishing facility. Third, treatment products containing these chemical substances could be applied to carpets in the aftermarket by consumers or professional carpet cleaners. In the described scenarios, LCPFAC chemical substances could have been domestically produced or imported. Fourth, treated carpet fabrics or treated carpet could be imported as articles. Domestically produced carpets could be made using imported fabrics that had been treated with PFAS or LCPFAC chemical substances or carpet containing these chemical substances could be imported into the United States as a final product.
The Agency believes that the LCPFAC chemical substances included in this proposal are no longer being manufactured, processed, or imported for use as part of carpet or for treating carpet (
The following summary of chemistry, environmental fate, exposure pathways, and health and environmental effects of LCPFAC chemical substances is based on the December 30, 2009 Long-Chain Perfluorinated Chemicals Action Plan (Ref. 1), as well as references cited in the 2009 Action Plan.
PFOA is the most studied chemical of the LCPFAC chemical substances. PFOA is manufactured for use primarily as an aqueous dispersion agent, as the ammonium salt, in the manufacture of fluoropolymers, such as PTFE, which have thousands of important manufacturing and industrial applications. PFOA can also be produced unintentionally by the degradation of some fluorotelomers, which are not manufactured using PFOA but could degrade to PFOA. Fluorotelomers are used to make polymers that impart soil, stain, grease, and water resistance to coated articles. Some fluorotelomer based products are also used as high performance surfactants in products where an even flow is essential, such as paints, coatings, cleaning products, and fire-fighting foams for use on liquid fuel fires.
FTBP can be applied to articles both at the factory and by consumers and commercial applicators in after-market uses such as carpet treatments and water repellent sprays for apparel and footwear (Ref. 18). Therefore, exposure to carpet treatment chemicals may occur both during and after the carpet manufacturing process. In 2008, EPA's ORD conducted research on 116 articles of commerce and found high levels of LCPFAC in carpet and carpet treatment products (levels were from 0.04-40,200 nanograms per gram) (Ref. 1). This is of particular concern for children since they engage in a variety of activities on carpets for longer periods of time in their earliest years and can be exposed to chemical substances in carpets via inhalation and dust ingestion (Ref. 1).
PFOA and its higher homologues are highly persistent chemical substances that are resistant to degradation under environmental conditions. The chemical substances which degrade to form these chemicals are called LCPFAC precursors. These precursors may be present in the final polymer product as residuals and the amount present in the polymer as perfluoroalkyl group (R
A limited number of studies on the degradation of fluorotelomers have been submitted in support of PMN submissions and existing chemical substances, and they have been published in the open literature. Based on studies, some fluorotelomer-based polymers are subject to hydrolysis, photolysis and biodegradation to some extent. Studies have shown half-lives of a few days to hundreds of years. In addition, existing research on degradation of fluorotelomers has shown that some urethanes and acrylates biodegrade; however, half-lives and kinetics of the fluorotelomers are not yet well defined (Ref. 22). Nevertheless, these studies have shown unambiguously that the perfluorinated portion of some polymers is released as the polymer is degraded by microbial or abiotic processes to form telomer alcohols or other intermediates and that they eventually form LCPFAC.
LCPFAC have been detected in biota, air, water, dust, and soil samples collected throughout the world. Some LCPFAC chemical substances have the potential for long-range transport. They are transported over long distances by a combination of dissolved-phase ocean and gas-phase atmospheric transport; however, determining which is the predominant transport pathway is complicated by many factors including the uncertainty over water to atmosphere partitioning. Furthermore, there is evidence that transport and subsequent oxidation of volatile alcohol LCPFAC precursors contribute to the levels of LCPFAC in the environment.
LCPFAC chemical substances have been detected in human blood samples throughout the United States and the world. These compounds have also been detected in human breast milk, liver, umbilical cord blood, and seminal plasma. Individual samples collected on perfluorinated chemical substances in the most recent National Health and Nutrition Examination Survey (NHANES) 1999-2009 are similar across teens and adults (Ref. 1); however, pooled data from NHANES 2001-2002 indicate that most of the levels of perfluorinated compounds are higher in children ages 3-11 years compared to adults. In addition, a 2009 Texas survey of 300 children reported PFOS, PFOA, perfluorohexanesulfonate (PFHS) and perfluorononanoic acid (PFNA) at higher levels in children 9 to 13 years than in 0 to 2 years (Ref. 1).
Multiple studies have reported a global distribution of LCPFAC in wildlife tissue and blood samples. LCPFAC have also been found in a variety of aquatic organisms. In general, the highest concentrations in wildlife have been found in the livers of fish-eating animals close to industrialized areas.
Animal studies of the straight-chain LCPFAC have shown that these compounds are well absorbed orally, but poorly eliminated; they are not metabolized, and they undergo extensive uptake from enterohepatic circulation. Studies of PFOA have shown that these compounds are distributed mainly to the serum, kidney, and liver, with liver concentrations being several times higher than serum concentrations; the distribution is mainly extracellular. PFOA has a high affinity for binding to B-lipoproteins, albumin, and liver fatty acid-binding protein. Studies have reported several LCPFAC chemical substances in umbilical cord blood, in amniotic fluid, and in blood samples from infants and toddlers (Ref. 1).
In general, the rate of elimination decreases with increasing chain length. Elimination in humans takes years (elimination half-life of PFOA is 2.3-3.8 years). These compounds will persist and bioaccumulate in humans, which means that comparatively low exposures may result in large body burdens.
LCPFAC bioaccumulate and persist in protein-rich compartments of fish, birds, and marine mammals, such as carcass, blood, and liver. Studies have found fish bioconcentration factor (BCF) values for C8 to C14 LCPFAC ranging from 4-40,000 in rainbow trout. Available evidence shows the likely potential for bioaccumulation or biomagnifications in marine or terrestrial species. Additional evidence that C14 and C15 LCPFAC bioaccumulate and are bioavailable is their presence in fish, invertebrates, and polar bears. The bioaccumulation of LCPFAC is thought to represent biomagnification due to high gastrointestinal uptake and slow elimination.
The toxicity of PFOA has been extensively studied and available data have raised concerns about LCPFAC chemical substances' potential developmental, reproductive, and systemic toxicity (Ref. 1). Although there is an extensive database for PFOA, few studies have examined the toxicity of other LCPFAC chemical substances. However, the data suggest that the toxicity profile is quite similar to that of PFOA, albeit at different dose levels.
As discussed in Units III and IV, PFAS and LCPFAC chemical substances are found world-wide in the environment, wildlife, and humans. They are bioaccumulative in wildlife and humans, and are persistent in the environment. They are toxic to laboratory animals, producing reproductive, developmental, and systemic effects in laboratory tests. The exact sources and pathways by which these chemicals move into and through the environment and allow humans and wildlife to become exposed are not fully understood, but are likely to include releases from manufacturing of the chemicals, processing of these chemicals into products like carpets and textiles, and aging and wear of products containing them.
Since the manufacture, import, and processing of PFAS and LCPFAC chemical substances for the proposed uses have been discontinued, EPA expects their presence in humans and the environment to decline over time as has been observed in the past when production and use of other persistent chemicals has ceased. EPA is concerned that the manufacturing, import (including import as part of certain articles), or processing of these chemical substances for the proposed new uses could be reinitiated in the future. If reinitiated, EPA believes that such use would increase the magnitude and duration of exposure to humans and the environment to these chemical substances, constituting a significant new use.
EPA is concerned about the potential for PFAS or LCPFAC chemical substances (manufactured or imported for an ongoing use) to be redirected to other uses without prior notice to the Agency. For example, a chemical substance may be initially manufactured or imported for a uses listed under § 721.9582(a)(3), (a)(4), or (a)(5), and then redirected for another use after its initial manufacture or import. EPA is therefore proposing to add the processing of a PFAS chemical substances (for any use in the United States, other than the uses listed under § 721.9582(a)(3), (a)(4), and (a)(5)) to the significant new uses of those chemical substances. For similar reasons, EPA is proposing to include the processing of LCPFAC chemical substances (for use as part of carpets or to treat carpet) among the significant new uses to be designated for those chemical substances. While the processing of articles containing PFAS and LCPFAC would remain exempt from notice
Accordingly, EPA wants the opportunity to evaluate and control, where appropriate, activities associated with those uses, if such manufacturing, importing, or processing were to start or resume. The required notification provided by a SNUN would provide EPA with the opportunity to evaluate activities associated with a significant new use and an opportunity to protect against unreasonable risks, if any, from exposure to PFAS and LCPFAC chemical substances.
Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use. Rather, the Agency's action is based on EPA's determination that if the use begins or resumes, it may present a risk that EPA should evaluate under TSCA before the manufacturing or processing for that use begins. Since the new use does not currently exist, deferring a detailed consideration of potential risks or hazards related to that use is an effective use of resources. If a person decides to begin manufacturing or processing the chemical for the use, the notice to EPA allows EPA to evaluate the use according to the specific parameters and circumstances surrounding that intended use.
While the Agency is currently only proposing as significant new uses of LCPFAC chemical substances use as part of carpet or to treat carpet, the Agency believes the 2010/2015 PFOA Stewardship Program will eliminate many other ongoing uses of LCPFAC chemical substances. As those uses are phased out in the United States, EPA anticipates taking additional regulatory actions to prevent resumption of the uses without prior notice to EPA.
Based on the considerations in Unit V.A., EPA wants to achieve the following objectives with regard to the significant new use(s) that are designated in this proposed rule:
1. EPA would receive notice of any person's intent to manufacture, import, or process PFAS or LCPFAC chemicals for the described significant new use before that activity begins.
2. EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing PFAS or LCPFAC chemicals for the described significant new use.
3. EPA would be able to regulate prospective manufacturers, importers, or processors of PFAS or LCPFAC chemicals before the described significant new use of the chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6 or 7.
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.
To determine what would constitute a significant new use of the PFAS and LCPFAC chemical substances subject to this proposed rule, as discussed herein, EPA considered relevant information about the toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in section 5(a)(2) of TSCA.
EPA has preliminarily determined that the manufacture, import, processing of any of the PFAS chemical substances subject to this proposed rule, for any use except ongoing uses specified in § 721.9582(a)(3) through (a)(5) of the regulatory text in this document, is a significant new use. EPA has also preliminarily determined that the manufacture, import, or processing of any of the LCPFAC chemical substances subject to this proposed rule for use as part of carpet or to treat carpets, is a significant new use, and further determined that importing any of the LCPFAC chemical substances subject to this proposed rule as part of carpet constitutes a significant new use and warrants making inapplicable the article exemption at § 721.45(f).
EPA welcomes comments on any aspect of this proposed SNUR. EPA requests comment on whether any of the uses proposed to be added as significant new uses are in fact ongoing, and would request specific documentation of any such ongoing use.
Before proposing this SNUR, EPA considered the following alternative regulatory actions:
Under a TSCA section 8(a) rule, EPA could, among other things, generally require persons to report information to the Agency when they intend to manufacture, import, or process a listed chemical for a specific use or any use. However, for PFAS and LCPFAC chemical substances, the use of TSCA section 8(a) rather than SNUR authority would have several limitations. First, if EPA was to require reporting under TSCA section 8(a) instead of TSCA section 5(a), EPA would not have the opportunity to review human and environmental hazards and exposures associated with the proposed significant new use and, if necessary, take immediate follow-up regulatory action under TSCA sections 5(e) or 5(f) to prohibit or limit the activity before it begins. In addition, EPA may not receive important information from small businesses, because such firms generally are exempt from TSCA section 8(a) reporting requirements. In view of the level of health and environmental concerns about PFAS and LCPFAC chemical substances if used for the proposed significant new use, EPA believes that a TSCA section 8(a) rule for this substance would not meet EPA's regulatory objectives.
EPA may regulate under TSCA section 6 if “the Administrator finds that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use or disposal of a chemical substance or mixture * * * presents or will present an unreasonable risk of injury to health or the environment.” (TSCA section 6(a)). Given that LCPFAC chemical substances are no longer being used as part of a carpet, and that the PFAS chemicals subject to this action have not commenced production or import, EPA concluded that risk management action under TSCA section 6 for these uses is not necessary at this
As discussed in the
EPA recognizes that TSCA section 5 does not usually require developing any particular test data before submission of a SNUN. There are two exceptions: (1) development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)); and (2) development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)). In the absence of a section 4 test rule or a section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25, and 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters include data that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacture, import, processing, use, distribution in commerce, or disposal. EPA encourages persons to consult with the Agency before submitting a SNUN. As part of this optional pre-notice consultation, EPA would discuss specific data it believes may be useful in evaluating a significant new use. SNUNs submitted for significant new uses without any test data may increase the likelihood that EPA will take action under TSCA section 5(e) to prohibit or limit activities associated with this chemical.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs that provide detailed information on:
1. Human exposure and environmental releases that may result from the significant new uses of the chemical substance.
2. Potential benefits of the chemical substance.
3. Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what data may be useful in evaluating a significant new use. Discussions with the Agency prior to submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the substance. According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers, importers, and processors of the chemical substance included in this proposed rule (Ref. 23). In the event that a SNUN is submitted, costs are estimated at approximately $8,571 per SNUN submission for large business submitters and $6,171 for small business submitters. These estimates include the cost to prepare and submit the SNUN, and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small business with annual sales of less than $40 million when combined with those of the parent company (if any), a reduced user fee of $100 (40 CFR 700.45(b)(1)). The costs of submission of SNUNs will not be incurred by any company unless a company decides to pursue a significant new use as defined in this proposed SNUR. EPA's complete economic analysis is available in the public docket for this proposed rule (Ref. 23).
Under section 12(b) of TSCA and the implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export a chemical substance or mixture for which, among other things, a rule has been proposed or promulgated under section 5. For persons exporting a substance the subject of a SNUR, a one-time notice must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications (i.e., the number of countries to which the chemical is exported). EPA is unable to make any estimate of the likely number of export notifications for the chemical covered in this proposed SNUR.
As indicated under
This action is not a “significant regulatory action” under the terms of Executive Order 12866, entitled
EPA has prepared an economic analysis of this action, which is contained in a document entitled
According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, EPA has determined that this regulatory action would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action would not have a substantial direct effect on 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, entitled
This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly or uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled
This action is not subject to Executive Order 13045, entitled
This proposed rule is not subject to Executive Order 13211, entitled
Since this action does not involve any technical standards; section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
1. The authority citation for part 721 continues to read as follows:
15 U.S.C. 2604, 2607, and 2625(c).
2. Add § 721.10536 to subpart E to read as follows:
(a)
(b)
(i) CF
(ii) CF
(iii) CF
(iv) CF
(v) CF
(vi) structurally similar degradation products of any of the compounds in (i) through (v) of this paragraph.
(2)
(c)
(1)
(2) [Reserved]
3. Section 721.9582 is amended by revising paragraph (a)(1) introductory text; by adding Table 4 to paragraph (a)(1) and by revising paragraphs (a)(2), (a)(3), (a)(4), and (a)(5) to read as follows:
(a)
(2) The significant new uses are:
(i) Manufacturing, importing, or processing of any chemical substance listed in Table 1 of paragraph (a)(1) of this section for any use.
(ii) Manufacturing, importing, or processing of any chemical substance listed in Table 2 of paragraph (a)(1) of this section for any use, except as noted in paragraph (a)(3) of this section.
(iii) Manufacturing, importing, or processing of any chemical substance listed in Table 3 of paragraph (a)(1) of this section for any use, except as noted in paragraphs (a)(3) through (a)(5) of this section.
(iv) Manufacturing, importing, or processing of any chemical substance listed in Table 4 of paragraph (a)(1) of this section for any use.
(3) Manufacturing, importing, or processing of any chemical substance listed in Table 2 and Table 3 of paragraph (a)(1) of this section for the following specific uses shall not be considered as a significant new use subject to reporting under this section:
(i) Use as an anti-erosion additive in fire-resistant phosphate ester aviation hydraulic fluids.
(ii) Use as a component of a photoresist substance, including a photo acid generator or surfactant, or as a component of an anti-reflective coating, used in a photomicrolithography process to produce semiconductors or similar components of electronic or other miniaturized devices.
(iii) Use in coating for surface tension, static discharge, and adhesion control for analog and digital imaging films, papers, and printing plates, or as a surfactant in mixtures used to process imaging films.
(iv) Use as an intermediate only to produce other chemical substances to be used solely for the uses listed in paragraph (a)(3)(i), (ii), or (iii) of this section.
(4) Manufacturing, importing, or processing of tetraethylammonium perfluorooctanesulfonate (CAS No. 56773-42-3) for use as a fume/mist suppressant in metal finishing and plating baths shall not be considered as a significant new use subject to reporting under this section. Examples of such metal finishing and plating baths include: Hard chrome plating; decorative chromium plating; chromic acid anodizing; nickel, cadmium, or lead plating; metal plating on plastics; and alkaline zinc plating.
(5) Manufacturing, importing, or processing of: 1-Pentanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,5-undecafluoro-, potassium salt (CAS No. 3872-25-1); Glycine, N-ethyl-N-[(tridecafluorohexyl)sulfonyl]-, potassium salt (CAS No. 67584-53-6); Glycine, N-ethyl-N-[(pentadecafluoroheptyl)sulfonyl]-, potassium salt (CAS No. 67584-62-7); 1-Heptanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6,7,7,7-pentadecafluoro-, ammonium salt (CAS No. 68259-07-4); 1-Heptanesulfonamide, N-ethyl-1,1,2,2,3,3,4,4,5,5,6,6,7,7,7-pentadecafluoro- (CAS No. 68957-62-0); Poly(oxy-1,2-ethanediyl), .alpha.-[2-[ethyl[(pentadecafluoroheptyl)sulfonyl]amino]ethyl]-.omega.-methoxy- (CAS No. 68958-60-1); or 1-Hexanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6,6-tridecafluoro-, compd. with 2,2′-iminobis[ethanol] (1:1) (CAS No. 70225-16-0) for use as a component of an etchant, including a surfactant or fume suppressant, used in the plating process to produce electronic devices shall not be considered a significant new use subject to reporting under this section.
Fish and Wildlife Service, Interior.
Notice of petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Bicknell's thrush (
We request that we receive information on or before October 15, 2012. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see
You may submit information by one of the following methods:
(1)
(2)
This finding is available on the Internet at
We will post all information we receive on
Thomas R. Chapman, Supervisor, U.S. Fish and Wildlife Service, New England Field Office, 70 Commercial Street, Suite 300, Concord, New Hampshire 03301; by telephone at 603-223-2541. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.
When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly initiate review of the status of the species (status review). For the status review to be complete, and based on the best available scientific and commercial information, we request information on the Bicknell's thrush from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(3) Information regarding the potential impacts to the species resulting from climate change, such as data, analyses, and predictions related to:
(a) The loss of spruce-fir forested habitat where the species breeds, including the projected impacts to the Canadian portion of the species' breeding range;
(b) Impacts to forest habitats in the Caribbean that provide important wintering habitat for the species; and
(c) Alterations to the cycling and productivity in balsam fir cone production that may alter population dynamics in red squirrels, a major predator of nestling Bicknell's thrush.
(4) Information regarding the ongoing and projected impacts of ground-level ozone emissions on spruce and fir in the northeastern United States and Maritime Provinces of Canada.
(5) Behavioral, survival, and reproductive consequences of various mercury accumulation levels in insectivorous songbirds.
(6) Impacts to the species resulting from the construction and operation of commercial wind turbines and transmission lines in breeding habitat, including habitat loss, mortality, productivity, and avoidance of turbines as a result of blade movements or noise.
(7) Existing regulatory mechanisms that may be protective of the Bicknell's thrush and its habitat, particularly on its wintering grounds in the Greater Antilles.
If, after the status review, we determine that listing the Bicknell's thrush is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:
(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;
(2) Where these features are currently found;
(3) Whether any of these features may require special management considerations or protection;
(4) Specific areas outside the geographical area currently occupied by the species that are “essential for the conservation of the species”; and
(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your information concerning this status review by one of the methods listed in the
Information and supporting documentation that we received and used in preparing this finding is available for you to review at
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly initiate a
On August 26, 2010, we received a petition, dated August 24, 2010, from Mollie Matteson, Center for Biological Diversity (CBD or petitioner), Northeast Field Office, requesting that the Bicknell's thrush be listed as threatened or endangered and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a September 9, 2010, letter to the petitioner, we responded that we would review the information presented in the petition and determine if listing of the Bicknell's thrush was warranted. This finding addresses the petition.
In 1994, the Bicknell's thrush was determined to be a category 2 species of concern and we announced that finding in the Animal Candidate Review for Listing as Endangered or Threatened Species (59 FR 58982). Category 2 was defined as including taxa for which the Service had information indicating that proposing to list as endangered or threatened is possibly appropriate, but for which persuasive data on biological vulnerability and threat are not currently available to support proposed rules. In 1996, the Service discontinued the list of category 2 candidate species, resulting in the removal of the Bicknell's thrush from candidate status (61 FR 64481).
Although the Bicknell's thrush was removed from the list of candidate species in 1996, the species was identified by the North American Bird Conservation Initiative as one of the Highest Priority Landbirds in the Atlantic Northern Forest (Dettmers 2006, p. 21), and the Service's New England Field Office has continued to amass information related to the species and to support conservation of the species.
On September 9, 2011, the U.S. District Court for the District of Columbia approved two settlement agreements: one agreement between the Service and CBD and a second agreement between the Service and WildEarth Guardians (WEG). The agreements enable the Service to systematically, over a period of 6 years, review and address the needs of more than 250 species listed on the 2010 Candidate Notice of Review (75 FR 69222). The agreements also include additional scheduling commitments for a small subset of the actions in the 6-year work plan that are consistent with the Service's objectives and biological priorities. For the Bicknell's thrush, the settlement agreement with WEG specifies that we will complete a 90-day petition finding by the end of fiscal year 2012.
The Bicknell's thrush (
The Bicknell's thrush was considered a subspecies of the gray-cheeked thrush until 1993. Ornithologists carefully evaluated the species' morphology, range, song, behavior, habitat, and genetic divergences and detected significant differences between the taxa. This evaluation subsequently led to the recommendation that the Bicknell's thrush be elevated to a full species (Ouellet 1993, p. 568). The American Ornithologist Union (1995, p. 824) recognizes the Bicknell's thrush as a species, and the Service concurs with that taxonomic change.
The Bicknell's thrush is a migratory species, meaning it travels between different geographical areas to fulfill life-history functions like breeding and raising its young. The species feeds predominantly on insects, but during migration and on its wintering grounds, the species can shift its diet almost entirely to the consumption of several varieties of small fruits (Beal 1915 in Wallace 1939, p. 295; Rimmer
The Bicknell's thrush breeds in portions of the northeastern United States and eastern and southern Canada and winters in the Greater Antilles. On its way between the breeding and wintering grounds, the Bicknell's thrush flies along the Atlantic coast and may stop in certain areas for resting and feeding. The breeding range of the species extends from the northern Saint Lawrence area of Quebec and the Maritime Canadian Provinces south through New England and New York to that State's Catskill Mountains (Wallace 1939, pp. 258-259; Ouellet 1993, pp. 563-564; Rimmer
The montane spruce-fir forests that this species prefers for breeding are typical of chronically disturbed areas associated with altered growing conditions resulting from human activities (e.g., ski trails) and natural processes. Natural disturbances include `terrific' winds, which can exceed 45 meters per second (mps) (100 miles per hour (mph)), and heavy rime ice accumulation that occurs when supercooled water droplets undergo rapid freezing upon contact with a cold surface (Wallace 1939, p. 282; Rimmer
The remaining global population of the Bicknell's thrush, or 37,000 to 49,000 birds, breeds in Canada (IBTCG 2010, p. 6). While Bicknell's thrush can be found in Canadian habitats associated with industrial forests at elevations as low as 175 m (574 ft), most are found in montane spruce-fir forests at elevations exceeding 600 m (1968 ft) (Ouellet 1993, pp. 560-563; Nixon
Although the Bicknell's thrush exhibits some flexibility in the elevation of breeding habitats used, the species demonstrates a strong preference for a specific vegetation structure. Breeding habitats in montane habitats or in lower elevation areas are characterized by dense vegetation (Rimmer
Breeding occurs in June, with males singing to attract a mate (Wallace 1939, p. 311; Rimmer
By the end of September, the Bicknell's thrush departs its breeding grounds (Wallace 1939, p. 259). Migration patterns are poorly known (Ouellet 1993, p. 564; Rimmer
Wintering occurs exclusively in the Greater Antilles, with the majority of birds on the island of Hispaniola, in Haiti and the Dominican Republic. The species can also be found on the islands of Cuba, Jamaica, and Puerto Rico (Rimmer
In spring, the birds leave the Greater Antilles, probably by late April (Rimmer
Conducting comprehensive surveys for the Bicknell's thrush is difficult because of the species' patchy distribution. As a result, Bicknell's thrush is under-represented in the United States' historical Breeding Bird Survey data, making detection of long-term trends difficult (Bystrak 1981, p. 38). However, several local extirpations from former breeding habitat have been detected (Rimmer
In Canada, the species has disappeared from Seal and Mud Islands in Nova Scotia (Committee on the Status of Endangered Wildlife in Canada (COSEWIC) 2009, p. 9), despite being relatively common at the time of Wallace's writing (1939, p. 331), when at least a dozen nests were found on Seal Island. Bicknell's thrush has also been absent from formerly occupied habitats on Cape Breton Island and Cape Forchu, Nova Scotia (COSEWIC 2009, p. 9; Rimmer
To obtain better information on the population status of all birds occupying high-elevation spruce-fir habitat in New Hampshire's White Mountains, a comprehensive survey was conducted during the period of 1993 to 2003 (King
In summary, the readily available current population trend information
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat, and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.
In making this 90-day finding, we evaluated whether information regarding threats to the Bicknell's thrush, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The petitioner asserts that the “primary threat to the long-term persistence of the Bicknell's thrush is habitat loss” (Center for Biological Diversity 2010 petition (Petition), p. 24). The petitioner concludes that “montane ecosystems that host populations of the Bicknell's thrush are small and fragmented, heightening their vulnerability to a number of complex, interrelated threats” (Petition, p. 24). “Foremost among these threats is global climate change,” the petitioner asserts, that will result in disappearance of montane forests from the species' current breeding range (Petition, p. 24). In addition to direct and indirect impacts of climate change, the petition also describes other factors that contribute to the loss of important breeding and wintering Bicknell's thrush habitat, including: (1) Acid rain deposition; (2) ground-level ozone and nitrogen atmospheric deposition; (3) recreational, telecommunication, and wind energy development activities; and (4) timber extraction that results in the conversion of breeding habitat to other land uses (Petition, pp. 6, 24).
The petitioner states that “Climate change represents the gravest threat to the long-term survival of the Bicknell's thrush” (Petition, p. 24). The petition provides an overview of global climate change research, including past, present, and predicted future climate change conditions (Petition, pp. 24-28). Following this overview of the scientific basis of global climate change, the petitioner discusses observed and predicted impacts to Bicknell's thrush habitat. The petitioner asserts that the predicted global climate change will result in increased July temperatures that could lead to a reduction in the amount of spruce-fir habitat for the Bicknell's thrush by over 95 percent (Petition, p. 29), as well as increase the frequency of erratic and severe weather events. The petition also cites references that indicate that climate change will result in drying trends for the Caribbean Basin that may reduce the suitability of important wintering habitats, as well as an increase in the frequency of tropical storms that may destroy habitat (Petition, pp. 31, 33).
Regarding climate change-induced increased summer temperatures in the Northeast, several studies provide relevant information. For example, the petitioner asserts that the Fourth Assessment Report: Climate Change 2007 (hereafter referred to as AR4), prepared by the Intergovernmental Panel on Climate Change (IPCC) presents the best available science on global climate change. We concur that the information on global climate change contained within AR4 is reliable. The IPCC concludes that warming of the climate system is unequivocal, as is now evident from observations of increase in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level (IPCC 2007, p. 2). Further, they attribute the warming to a 70 percent increase in greenhouse gas (mostly CO
This warming trend is expected to continue as a result of a projected increase of global greenhouse gas emissions by 25 to 90 percent between 2000 and 2030, which would be greater than the change observed during the 20th century (IPCC, p. 7). Although there is some uncertainty regarding the mechanics of climate change and how much temperatures will change, the projected global average surface temperature increase is estimated to range from 1.1 °C to 6.4 °C (2.0 °F and 11.5 °F) in 2090 to 2099, over the temperatures observed during the 19-year period of 1980 to 1999 (IPCC 2007, p. 8). Consistent with this increase in global average temperatures, at a regional scale, average annual temperatures in the northeastern United States are also projected to rise by 2.9 °C to 5.3 °C (5.0 °F to 10.0 °F) by 2070 to 2099, in comparison to the period of 1961 to 1990 (Hayhoe
The petition presents research, supported by readily available information in our files, which demonstrates that climate change-induced habitat loss has occurred
The montane spruce-fir forests of New York and northern New England provide breeding habitat for approximately 60 percent of the world's estimated Bicknell's thrush population (IBTCG 2010, p. 6). Rodenhouse
The petitioner indicates that she is unaware of any climate modeling for Canadian highland forests used by Bicknell's thrush (Petition, p. 31). This will be further investigated during our 12-month status review.
In regard to increasing frequency of storms, the petitioner also indicates that climate change will cause “more erratic and severe weather events” but acknowledges that how or to what extent the bird's breeding habitat will be impacted is unknown (Petition, p. 33). There is no information readily available to the Service specific to the expected frequency or intensity of storms that may impact montane spruce-fir breeding habitat, but this will be further investigated during our 12-month status review.
In addition to climate change impacts to breeding habitat, the petitioner asserts that the quality of wintering habitat for the Bicknell's thrush in the Greater Antilles will be reduced by climate change-induced drought (Petition, p. 31) and more intense and frequent El Niño Southern Oscillation events (Petition, p. 33). By 2050, the observed significant drying trends in the Caribbean are expected to reduce water resources (Neelin
The petition suggests that climate change may alter the disturbance dynamics of native forest insects and diseases, as well as facilitate the establishment and spread of nonindigenous species (Hunt
The spruce budworm (
Local extinction of balsam fir is one potential outcome of climate change-induced intensification of spruce budworm outbreaks (Fleming and Candau 1998, p. 246). However, a potential benefit of this change is that the Bicknell's thrush is known to use regenerating forests disturbed by spruce budworm infestations (COSEWIC 2009, p. 10; Bredin and Whittam 2009, p. 13). As we describe above in the Species Information section, Bicknell's thrush feed on many insects, including species of lepidopteran larvae (Wallace 1939, p. 295), which may include the spruce budworm.
The balsam woolly adelgid (
The petition asserts that deposition of acid and nitrogen poses a serious threat to Bicknell's thrush habitat throughout its high-elevation habitat (Petition 2010, pp. 33-36). Acid deposition, commonly referred to as acid rain, is mostly derived from the burning of fossil fuels, such as coal and gas, that results in the production of sulfur dioxide and nitrogen oxides that in turn react with atmospheric water, oxygen, and other chemicals to form various acidic compounds (U.S. Environmental Protection Agency (EPA) 2012,
Information in our files suggests that deposition of acid may have several implications for the Bicknell's thrush and its habitat. First, deposition of acidic ions is known to reduce soil calcium, which likely leads to calcium deficiencies that render red spruce needles vulnerable to freezing damage. This damage reduces a tree's tolerance to low temperatures and increases the occurrence of winter injury and subsequent mortality (DeHayes
Information in our files also suggests that deposition of nitrogen, a major plant nutrient, may also affect Bicknell's thrush habitat when the nitrogen deposition acts in concert with increased spruce-fir mortality resulting from deposition of acid; deposition of nitrogen, a major plant nutrient, may also affect Bicknell's thrush habitat. In high elevation spruce-fir forests, nutrient cycling is naturally low due to slower decomposition and low biological nitrogen demand; however, high-elevation areas receive greater amounts of atmospheric nitrogen than do low-elevation areas (McNulty
The petition goes on to suggest, without providing any supporting references, high spruce mortality, as a result of acid and nitrogen deposition, provides a more open canopy and may expose adult Bicknell's thrush to greater risk of predation. The petitioner states the increase in exposure requires resident thrushes to spend more time being vigilant for predators instead of spending more time and energy on other vital life functions (Petition, p. 33). There is no evidence presented with the petition to support this concern. In fact, information in our files indicates that Bicknell's thrush frequently sing from exposed perches atop dead snags (Rimmer
The petition suggests that ground-level ozone is another air pollutant that is putting Bicknell's thrush habitat at risk of long-term and potentially irreversible decline (Petition, p. 35). Ozone is the product of a reaction of sunlight on nitrogen oxide and hydrocarbons, which can cause foliage damage and lead to reduced growth in plants (Lovett and Tear 2008, pp. 4-5). To support this position, the petition provides information regarding the impacts that ground-level ozone has had on western conifers (Petition, p. 35). However, the petition acknowledges that ozone impacts to montane red spruce and balsam fir are not described. Likewise, we are also unaware of any information suggesting that ground-level ozone is impacting Bicknell's thrush habitat.
The petitioner asserts that development for recreation (i.e., ski areas), especially the cumulative effect of multiple ski areas, directly results in the loss and fragmentation of Bicknell's thrush breeding habitat (Petition, pp. 35-36). Information in our files demonstrates that this concern is shared by others; however, the cumulative effects of these threats across the range of the Bicknell's thrush are poorly known (Rimmer
In Vermont, 13 mountains that are greater than 915 m (3,000 ft) elevation are developed for recreational skiing, and many of these ski areas offer mountain bike activities during the Bicknell's thrush breeding season (Rimmer
Information in our files provides variable data on these developments' long-term impacts on local populations of the Bicknell's thrush. For example, research at the Stowe Mountain Resort on Mount Mansfield and the Stratton Mountain Resort in Vermont demonstrates that there are few differences in various Bicknell's thrush population and reproductive parameters (including nest predation, nest success, parental care, movement patterns, survivorship, or productivity) between habitat patches at the ski areas and natural forests on each of the respective resorts' mountains (Rimmer
In addition to ski area development, the petitioner asserts that infrastructure development for telecommunication and wind energy projects poses a threat to Bicknell's thrush habitat (Petition, p. 37). Wind and telecommunications structures are often placed on exposed high-elevation areas (Petition, p. 37), which may include areas of suitable Bicknell's thrush breeding habitat. Information in our files indicates that construction of wind and telecommunication facilities potentially impacts the species through habitat removal.
Limited information is available from existing or proposed wind turbine sites (MacFarland
There are few examples of completed wind turbine construction projects in Bicknell's thrush habitat, but MacFarland
The petition asserts that logging in Canada and northern Maine is “a prime threat” to Bicknell's thrush breeding habitat (Petition, pp. 37-39). Specifically, the petitioner suggests that dramatic drops in Bicknell's thrush presence at Canadian monitoring sites over the last 1 to 2 decades provide a clear indication that logging damages habitat and threatens the long-term survival of the species. However, information in our files suggests that the Bicknell's thrush is often found in managed forests, and it is unclear how forestry practices alter the amount and suitability of breeding habitat in Canada and northern Maine (IBTCG 2010, p. 11).
Throughout the industrial highlands of Canada and northern Maine, the practice of clearcutting may impact Bicknell's thrush by temporarily removing forest habitat. But, the petitioner acknowledges, and information in our files suggests, that regeneration of balsam fir and spruce in these areas is known to result in the creation of breeding habitat (Ouellet 1993, p. 566; Chisholm and Leonard 2008, p. 218; COSEWIC 2009, p. 31; IBTCG 2010, p. 11; Petition 2010, p. 38). Following clearcutting, dense regeneration of spruce and fir often follows, resulting in the creation of suitable Bicknell's thrush breeding habitat (Nixon
Information in our files suggests other forestry practices may also impact Bicknell's thrush habitat. Specifically, precommercial thinning that reduces stem densities to maximize growth in remaining trees results in the reduced abundance of Bicknell's thrush (Chisholm and Leonard 2008, p. 222). Precommercial thinning could also directly destroy Bicknell's thrush nests because thinning is often conducted during the bird's nesting season (Makepeace and Aubry, unpubl. data in COSEWIC 2009, p. 31).
In addition to the petitioner's discussion of the impacts of forestry practices on breeding range habitat, information in our files indicates an ongoing loss and degradation of important forested wintering habitat through logging, subsistence farming, and human-caused fires (Rimmer
The petitioner did not present information suggesting that overutilization is affecting Bicknell's thrush populations.
One reference in our files indicates that 3 of 108 Vermont nests monitored during the period of 1992 to 2000 were abandoned and that abandonment may be caused by researcher disturbance (Rimmer
The petitioner asserts that disease (e.g., avian malaria) could have a substantial effect on the population viability of the Bicknell's thrush (Petition, p. 40).
The petitioner states that climate change may increase predation of the Bicknell's thrush by altering environmental conditions currently limiting the distribution of predators, and allowing “novel predators” to access the bird's habitat (Petition, pp. 39-40). The petitioner also states that the red squirrel (
The petitioner asserts that disease (e.g., avian malaria) could have a substantial effect on the population viability of the Bicknell's thrush (Petition, p. 40). While the petitioner provides information regarding the presence of avian malaria in New England and some bird species, the petitioner acknowledges that “bird populations have largely adapted to malarial parasites” and provides no information indicating that avian malaria or other diseases may be a threat to the Bicknell's thrush. In addition, we are unaware of any information that may substantiate this speculation. Therefore, the information presented in the petition and readily available in our files does not indicate that disease may be a threat to the Bicknell's thrush. However, disease impacts to the Bicknell's thrush will be further investigated as part of our 12-month status review.
Documented predation of adult Bicknell's thrush is limited to only a few predators. Of 8 depredation events on radio-tagged breeding adults, 7 were attributed to the sharp-shinned hawk (
The sharp-shinned hawk, American marten (
Since Wallace's observations, additional evidence demonstrates a somewhat loose 2-year (biennial) cycle in nest survival rates on Stratton Mountain and Mount Mansfield, Vermont (Rimmer
The petitioner asserts, with no supporting information, climate change may alter this biennial cycle of balsam fir cone production and red squirrel abundance (Petition, p. 40). Information in our files suggests balsam fir cone production has been linked to climatic variables (Messaoud
In addition to biennial cycle disruptions, the petition also asserts that climate change will allow “novel” predators (i.e., previously unknown), such as the raccoon (
The petition states that existing Federal, state, or international regulatory mechanisms protecting the Bicknell's thrush or its habitat are inadequate. More specifically, the petition states that existing international and U.S. regulatory mechanisms to reduce global greenhouse gas emissions are inadequate to safeguard the Bicknell's thrush against extinction resulting from climate change (Petition, p. 40).
The petitioner cites national and international regulatory mechanisms that are generic to migratory birds, as well as some that are specific to the Bicknell's thrush (Petition, pp. 41-42, 44). For example, the petitioner asserts that existing Federal regulatory mechanisms, including the Migratory Bird Treaty Act of 1918, as amended (MBTA), do not protect habitat for migratory birds, including the Bicknell's thrush. In the United States, under the MBTA, it is unlawful to take, capture, kill, or possess migratory birds, their nests, eggs, and young. The MBTA was not crafted to specifically protect habitat, although it may provide indirect benefits to migratory bird habitat, and, therefore, cannot be considered an inadequate existing regulatory mechanism for habitat protection. In addition, the petitioner further states that the Migratory Bird Conservation Act, the Neotropical Migratory Bird Conservation Act, and the identification of birds of management concern through the Birds of Conservation Concern apply to the Bicknell's thrush. These various actions are intended to foster proactive conservation, are nonregulatory (Petition, pp. 41-42; USFWS 2008, p. 30) and, therefore, cannot be considered inadequate existing regulatory mechanisms.
As for international regulatory mechanisms, the Bicknell's thrush is protected in Canada under the Migratory Birds Convention Act of 1994. In addition, the Committee on the Status of Endangered Wildlife in Canada designated the bird as threatened in Quebec, New Brunswick, and Nova Scotia (COSEWIC 2009, pp. iii, vi). The COSEWIC is a panel of species experts who evaluate the conservation status of Canadian species according to a set of criteria and recommend which species should be protected under Canada's Species at Risk Act (SARA). While COSEWIC has evaluated the Bicknell's thrush as a threatened species, the Minister of Environment has not yet added the species to SARA's Schedule 1 (threatened and endangered wildlife). Bicknell's thrush is considered a SARA Schedule 3 Species of Concern, which means the Schedule 1 protection and conservation provisions of SARA do not apply. With regard to the Dominican Republic and Haiti, the petitioner asserts that current protections are minimal and confined to the designation of several national parks that provide limited protection to a small portion of the bird's wintering habitat where habitat degradation due to human activities continues (Petition, pp. 55-56). Although not specifically stated by the petition under Factor D, the petition asserts in Factor E that wintering habitat in Cuba is inadequately managed (Petition, p. 56). We have no readily available information in our files that addresses the regulatory mechanisms that may or may not be protective of Bicknell's thrush in Canada or the Greater Antilles. We will further investigate Canadian and Greater Antilles regulations during our 12-month status review.
The petitioner provides no information regarding any action taken by a state or provincial entity that specifically protects the Bicknell's thrush under existing authorities for threatened or endangered wildlife, but does provide information on how forested habitat, which may be occupied by Bicknell's thrush, is managed in each state (Petition, pp. 47-54). Information in our files indicates that the Bicknell's thrush has been identified as a species of special concern in Maine, New York, Vermont, and New Hampshire (IBTCG 2010, p. 7). Species afforded this designation receive no legal status under existing state endangered species statutes. Similarly, the species is considered “vulnerable” in Nova Scotia and “may be at risk” in New Brunswick and Quebec, but these designations provide little to no additional protection (IBTCG 2010, p. 7; Petition, p. 44).
In the Puerto Rican portion of its wintering range, the Bicknell's thrush is protected under the MBTA, as described previously. The petitioner provides no information, and we are not aware of any information, regarding the legal status of Bicknell's thrush in the Dominican Republic, Haiti, Jamaica, or Cuba. In addition, we have no readily available information, either from the petition or in our files, on any existing regulatory mechanisms that would provide specific protections for the Bicknell's thrush in the national parks of Hispaniola.
The petitioner asserts that amendments to the Clean Air Act in 1990 have strengthened regulations to control the emission of airborne pollutants, but it has not been effective in alleviating the harmful effects of mercury, acid deposition, ground-level ozone, or nitrogen nutrification in Bicknell's thrush habitat (Petition, p. 42). Specifically, the petitioner asserts that EPA has delayed regulating mercury emissions as a result of legal actions against the agency, while regulations to control acid deposition have not been ambitious enough to address the problem (Petition, p. 43). Furthermore, the petitioner asserts that, while the 1990 Clean Air Act amendments have helped reduce nitrogen dioxide emissions that lead to ozone pollution, greater reductions are needed to prevent ongoing ozone pollution that the petitioner states is damaging the habitat of Bicknell's thrush (Petition, p. 43). The petitioner also states that an international agreement to regulate mercury pollution is being developed, but has not yet been implemented (Petition, p. 44).
As discussed above in Factor A, information presented in the petition and readily available in our files does not indicate that ground-level ozone may be threat to the Bicknell's thrush. Therefore, ground-level ozone may be adequately regulated.
Finally, the petitioner states that the effect of climate change on the montane habitat of the Bicknell's thrush is the most serious threat to its continued existence, and that existing international and U. S. regulatory mechanisms to reduce global greenhouse gas emissions are clearly inadequate (Petition, pp. 40, 44). The petitioner argues that national and international reductions in emissions are urgently needed to safeguard the Bicknell's thrush against extinction resulting from climate change.
The Clean Air Act of 1970 (42 U.S.C. 7401
As of August 24, 2010, the time of the petition's receipt, it was not known what regulatory mechanisms would be developed in the future as an outgrowth of EPA's finding that the Clean Air Act is insufficient to regulate greenhouse gases or how effective they would be in addressing climate change. Climate change regulations, and to what extent they adequately address threats to Bicknell's thrush and its habitat, will be investigated in our 12-month status review.
The petitioner asserts that mercury exposure and accumulation, decreased dietary calcium due to acid deposition, direct mortality caused by climate change, increased interspecific competition caused by climate change, and disturbance by recreationists are all threats to the Bicknell's thrush.
The petitioner discusses information regarding the atmospheric deposition of mercury, a potent neurotoxin, and the process by which it accumulates in the Bicknell's thrush (Petition, pp. 56-58). According to the petition, mercury originating mostly from coal-fired power plants accumulates in wildlife and is influencing some wildlife populations. The petitioner recognizes documentation of methylmercury burdens, the toxic form of mercury, in terrestrial montane songbirds is a recent discovery (Petition, p. 57). Among four evaluated songbirds, the Bicknell's thrush had the highest blood mercury concentrations, with birds in the southern portion of the species' range having higher loads than in northern areas. In addition, atmospheric deposition of mercury is two to five times higher in montane areas than in adjacent low-elevation areas (Petition, p. 57).
Elevated levels of toxic mercury have been found in Bicknell's thrush tissue and may be cause for concern (IBTCG 2010, p. 13). Mercury in the northeastern United States and eastern Canada is derived from local, regional, and global emissions; however, most estimates show that approximately 60 percent of mercury in this area is derived from sources located within the United States (Evers 2005, p. 5). Mercury toxicity is largely dependent upon whether it is converted to the bioavailable toxic form known as methylmercury, as well as an organism's trophic position (e.g., its level in the food chain). Trophic position influences mercury exposure due to the processes of bioaccumulation (increase in the body over time) and biomagnification (increase in concentration from one trophic level to another) (Evers 2005, p. 6). Generally, a species that is higher in the food chain has a greater exposure to mercury if its prey has mercury in its body when consumed as food.
Mercury deposition is highest on high mountain summits in comparison to other landscape positions primarily as a result of the summits' greater exposure to cloud-based mercury sources (Miller
The specific pathway by which the Bicknell's thrush consumes mercury and the effects that the burden has on the birds is unknown (Rimmer
The petitioner asserts that acid deposition impacts the habitat of the Bicknell's thrush by reducing calcium availability that has been shown to influence survival of red spruce. The petitioner also asserts that acid deposition can directly alter calcium availability for breeding songbirds that may impact eggshell production (DeHayes
The petitioner asserts that increased storm frequency and intensity have the potential to increase mortality in the Bicknell's thrush (Petition, p. 58). Information in our files suggest most Bicknell's thrush nesting failures are attributed to predation, but climate change scenarios predict increases in the frequency of wind and precipitation that may result in additional nest failures (Hayhoe
The petitioner asserts that climate change will increase encroachment of the Bicknell's thrush by competitors that were formerly restricted to lower elevations (Petition, p. 58). The petition acknowledges that the Swainson's thrush (
The Bicknell's thrush is considered to be better adapted to colder environments than is the Swainson's thrush (Holmes and Sawyer 1975 in Nixon
The petitioner asserts that recreational use (hiking and biking) in Bicknell's thrush habitat poses a threat to the species (Petition, p. 59; IBTCG 2010, p. 12). The petitioner states that the backcountry areas of the White Mountain National Forest in New Hampshire, including the high-elevation spruce-fir habitat occupied by the Bicknell's thrush, received about 31,400 visitors in 2005 (Petition, p. 59; King
The petitioner cites Rimmer
As previously described above in Factor A and as indicated in the petition, construction of telecommunications structures (stationary structures) and wind turbines (moving structures) on exposed high-elevation areas (Petition, p. 37) can directly impact Bicknell's thrush habitat (Rimmer
Information in our files suggests that individual Bicknell's thrush may be disturbed by wind towers and exhibit avoidance of wind turbine areas in response to noise and movement from the spinning blades (MacFarland
On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition presents substantial scientific or commercial information indicating that listing the Bicknell's thrush throughout its entire range may be warranted. This finding is based on information provided under factors A, D, and E. We determine that the information provided under factors B and C is not substantial.
Because the petition presents substantial information indicating that listing the Bicknell's thrush may be warranted, we will be initiating a status review to determine whether listing the Bicknell's thrush under the Act is warranted.
The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the NEFO.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of the Under Secretary, Research, Education, and Economics, USDA.
Notice of meeting.
The notice announced the USDA's August 27-28 meeting of the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21). The notice was published in the
Michael Schechtman, 202-720-3817.
In the
On August 27, 2012, if time permits, reasonable provision will be made for oral presentations of no more than five minutes each in duration. Comments may also be provided by Email or by fax to Dr. Schechtman at the addresses indicated above by no later than August 22, 2012. Please include your full name, address, and relevant affiliation in any comments submitted.
Forest Service, USDA.
Notice of meeting.
The Nevada and Placer County Resource Advisory Committee will meet in Truckee and Nevada City, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meetings are open to the public. The purposes of the meetings are to review and recommend projects authorized under title II of the Act.
The meetings will be held September 4, 2012 beginning at 9 a.m. in Truckee and on September 6, 2012 in Nevada City beginning at 9 a.m.
The meeting will be held at the Forest Service Truckee District Ranger Station, 10811 Stockrest Springs Rd, Truckee, CA, 96161 and at the Tahoe National Forest Headquarters, 631 Coyote St., Nevada City, CA 95959.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Tahoe National Forest Headquarters, Nevada City. Please call ahead to 530-265-4531 to facilitate entry into the building to view comments.
Ann Westling, Public Affairs Officer, Tahoe National Forest, 530-478-6205,
The following business will be conducted: welcome and introductions, project proposal review, public comments, and vote on project proposals. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by 8/24/2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Ann Westling, 631 Coyote Street, Nevada City, CA, 95959. A summary of the meeting will be posted at
Forest Service, USDA.
Notice of meeting.
The Sierra County Resource Advisory Committee will meet in Sierraville and/or Downieville, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. The meetings are open to the public. The purposes of the meeting(s) are to review and recommend projects authorized under title II of the Act.
The meetings will be held September 7, 2012 beginning at 9 a.m. in Sierraville and on September 10, 2012 in Downieville beginning at 9 a.m. (if needed as a back-up meeting in case
The meetings will be held at the Forest Service Sierraville District Ranger Station, 317 S. Lincoln St. (Hwy 89), Sierraville, CA, 96126 and/or at the Downieville Community Hall, 327 Main St, Downieville, CA, 95936.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Tahoe National Forest Headquarters, Nevada City. Please call ahead to 530-265-4531 to facilitate entry into the building to view comments.
Ann Westling, Public Affairs Officer, Tahoe National Forest, 530-478-6205,
The following business will be conducted: Welcome and introductions, project proposal review, public comments, and vote on project proposals. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by 8/24/2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Ann Westling, 631 Coyote Street, Nevada City, CA, 95959. A summary of the meeting will be posted at
Forest Service, USDA.
Notice of meeting.
The Northern New Mexico Resource Advisory Committee (NNM RAC) will meet in Albuquerque, New Mexico. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects authorized under title II of the Act and funds to be allocated and to discuss acquisition management instruments for implementation of title II projects, review monitoring report, review and approve administrative costs, provide opportunity for proponents to present proposals (5 minutes each), provide NNM RAC members opportunity to ask questions about proposals (3 minutes each), review proposal recommendation process, review and rank project proposal by Category Groups, provide recommendations for funding to Designated Federal Officials and provide for public comment.
The meeting will be held on September 10, 2012 beginning at 10 a.m. and ending at 5 p.m. and on September 11, 2012 beginning at 8 a.m. and ending at 5 p.m.
The meeting will be held at the Cibola National Forest Supervisor's Office conference room located at 2113 Osuna Rd. NE., Albuquerque, NM 87113. Written comments may be submitted as described under
Ruben Montes, RAC Coordinator, Santa Fe. National Forest, 575-438-5356,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed in
The following business will be conducted: review the status of Title II and funds to be allocated, discuss acquisition management instruments for implementation of Title II projects, review monitoring report, review and approve administrative costs, provide opportunity for proponents to present proposals (5 minutes each), provide NNM RAC members an opportunity to ask questions about proposals (3 minutes each), review the proposal recommendation process, review and rank project proposals by Category Groups, provide recommendations for funding to the Designated Federal Official and provide for public comment. Further information can be found at
Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 31, 2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to 11 Forest Lane, Santa Fe, New Mexico 87508, or by email to
Forest Service, USDA.
Notice of meeting.
The North Mt. Baker-Snoqualmie (MBS) Resource Advisory Committee (RAC) will meet in Sedro Woolley, Washington on August 27, 2012. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and rank 2013 Title II RAC proposals.
The meeting will be held on Monday, August 27, 2012 from 8 a.m. to 4 p.m.
The meeting will be held at the Mt. Baker Ranger District office located at 810 State Route 20, Sedro-Woolley, Washington, 98284. Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Mt. Baker Ranger District (below). Please call ahead to (360) 854-2601 to facilitate entry into the building to view comments.
Jon Vanderheyden, District Ranger, Mt. Baker Ranger District, phone (360) 854-2601, email
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Written comments and requests for time for oral comments must be sent to Mt. Baker Ranger District, 810 State Route 20, Sedro-Woolley, Washington, 98284.
More information will be posted on the Mt. Baker-Snoqualmie National Forest Web site at:
Forest Service, USDA.
Notice of meeting.
The South Central Idaho Resource Advisory Committee will meet in Jerome, Idaho. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review project applications for funding.
The meeting will be held September 5, 2012, 9 a.m.
The meeting will be held at the Idaho Department of Fish and Game, 319 S 417 E, Jerome, Idaho 83338. Written comments may be submitted as described under
Julie Thomas, Designated Federal Official, Sawtooth National Forest, 208-737-3200, and
The following business will be conducted: Review project applications for funding. The meeting agenda may be previewed at the following Web site:
Forest Service, USDA.
Notice of meeting.
The Alpine County Resource Adivisory Committee will meet in Markleeville, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects authorized under title II of the Act.
The meeting will be held September 10th 2012 at 6 p.m.
The meeting will be held at the Alpine Early Learning Center, 100 Foothill Road, Markleeville, CA.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Carson Ranger District, 1536 S. Carson St, Carson City, NV. Please call ahead to 775-884-8140 to facilitate entry into the building to view comments.
Daniel Morris, RAC Coordinator, Carson Ranger District, 775-884-8140,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The following business will be conducted: (1) Review and recommend funding allocation for proposed projects for 2012 funding (2) Public Comment. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to 1536 S. Carson St., Carson City, NV. 89701, or by email to
Rural Business-Cooperative Service, USDA.
Notice of Funding Availability (NOFA).
USDA announces the availability of grants through the Value-Added Producer Grant (VAPG) program for Fiscal Year 2012. Approximately $14 million in competitive grant funds for FY 2012 is available to help agricultural producers enter into value-added activities. At the discretion of the Secretary, additional funds may be made available to qualified ranking applications that respond to this announcement from prior year carry-over funds.
Awards may be made for either economic planning or working capital activities related to the processing and/or marketing of valued-added agricultural products. The maximum grant amount for a planning grant is $100,000 and the maximum grant amount for a working capital grant is $300,000.
There is a matching funds requirement of at least $1 for every $1 in grant funds provided by the Agency (matching funds plus grant funds must equal proposed total project costs). Matching funds may be in the form of cash or eligible in-kind contributions and may be used only for eligible project purposes. Matching funds must be available at time of application and must be certified and verified as described in 7 CFR 4284.931(b)(3) and (4). See 7 CFR 4284.923 and 7 CFR 4284.924 for examples of eligible and ineligible uses of matching funds.
Ten percent of available funds are reserved to fund applications submitted by Beginning Farmers or Ranchers and Socially Disadvantaged Farmers or Ranchers, and an additional 10 percent of available funds are reserved to fund applications from farmers or ranchers that propose development of Mid-Tier Value Chain projects (both collectively referred to as “reserved funds”). See 7 CFR 4284.925 and 7 U.S.C. 1632(a).
You must submit your application by October 15, 2012 or it will not be considered for funding announced in this Notice. Paper applications must be postmarked and mailed, shipped or sent overnight by this date. Electronic applications are permitted via www.grants.gov only, and must be received before midnight on this date.
You should contact your USDA Rural Development State Office if you have questions about eligibility or submission requirements. You are encouraged to contact your State Office well in advance of the application deadline to discuss your project and to ask any questions about the application process. You may request technical assistance from your State Office up to 14 days prior to the application deadline. Application materials are available at
If you want to submit an electronic application, follow the instructions for the VAPG funding announcement on
Office of the Deputy Administrator, Cooperative Programs, Rural Business-Cooperative Service, United States Department of Agriculture, 1400 Independence Avenue SW., MS-3250, Room 4016-South, Washington, DC 20250-3250, (202) 720-8460.
In accordance with the Paperwork Reduction Act, the paperwork burden associated with this Notice has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0039.
The primary objective of this grant program is to help Independent Producers of agricultural commodities, Agriculture Producer Groups, Farmer and Rancher Cooperatives, and Majority-Controlled Producer-Based Business Ventures enter into value-added activities related to the processing and/or marketing of bio-based value-added agricultural products. Grants will be awarded competitively for either planning or working capital projects directly related to the processing and/or marketing of value-added products. Generating new products, creating and expanding marketing opportunities, and increasing producer income are the end goals. Applications that support aspects of regional strategic planning, cooperative development, sustainable farming, and local and regional food systems are encouraged. Proposals must demonstrate economic viability and sustainability in order to compete for funding.
As part of this funding initiative, funding priority will be available to Beginning Farmers and Ranchers, Socially-Disadvantaged Farmers and Ranchers, Operators of Small and Medium-Sized Farms and Ranches that are structured as a Family Farm, Farmer or Rancher Cooperatives, and projects proposing to develop a Mid-Tier Value Chain. See 7 CFR 4284.922(c) for Reserved Funding and 7 CFR 4284.922(d) for Priority Point categories and requirements.
The VAPG Program is authorized under section 231 of the Agriculture Risk Protection Act of 2000 (Pub. L. 106-224), as amended by section 6202 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) (see 7 U.S.C. 1632a). Applicants must adhere to the program requirements contained in the program regulation, 7 CFR 4284, subpart J, which is incorporated by reference in this Notice.
The terms you need to understand are defined in 7 CFR 4284.902. In addition, there has been some confusion on the Agency's meaning of the terms “Harvester,” and “Steering Committee,” because these terms are only referenced as part of the Independent Producer definition and are not specifically defined in the regulation used for the program. Therefore, these terms are defined below and should be understood as follows.
Finally, in support of the
You must be an Independent Producer, Agricultural Producer Group, Farmer or Rancher Cooperative, or a Majority Controlled Produced-Based Business to apply to this program; and you must meet all related requirements for Emerging Market (as applicable), Citizenship, Legal Authority and Responsibility, Multiple Grants and Active Grants. In addition, you must meet Departmental requirements related to debarment, suspension and exclusion from participation in Federal assistance programs, as well as requirements related to outstanding Federal income taxes, judgments and delinquencies. For detailed requirements, see 7 CFR 4284.920 and 7 CFR 4284.921.
As a special emphasis, Rural Development encourages applications from Federally Recognized Tribal Groups and corporations and subdivisions of Tribal Groups undertaking or planning to undertake eligible value-added projects. For further tribal eligibility questions, please contact your local Rural Development office.
As part of applicant eligibility, it is important to clarify that all four applicant types must meet the Independent Producer and Agricultural Producer definition requirements in 7 CFR 4284.902, including, but not limited to, production and ownership of the majority of the raw agricultural commodity that will be transformed into the proposed value-added product for the project. All applicants must maintain ownership of the raw agricultural commodity through the production and marketing of the value-added product, with one partial exception for Mid-Tier Value Chain projects noted in its definition in 7 CFR 4284.902. Businesses that contract out the production of an agricultural commodity are not considered Independent Producers, and businesses that produce the agricultural commodity under contract for another business and do not own the raw commodity or value-added product produced are not considered Independent Producers.
Finally, all applicants for working capital funds must document the quantity of the agricultural commodity that will be used for the value-added product, expressed in an appropriate unit of measure (acres, pounds, bushels, etc.) to demonstrate the scale of the applicant's project. This quantification must include an estimated total quantity of the agricultural commodity needed for the project, the quantity that will be provided (produced and owned) by the agricultural producers of the applicant organization, and the quantity that will be purchased or donated from third-party sources. The application must demonstrate that the amount of applicant commodity contributed to the project is the majority of the total agricultural commodity needed for the value-added project.
Your project must meet (1) Product Eligibility requirements related to the definition of Value-Added Agricultural Product, including value-added methodologies, expansion of customer base for the agricultural commodity, and increased revenues returning to the applicant's producers of the agricultural commodity as a result of the project; (2) Purpose Eligibility requirements related to maximum grant amounts, certification and verification of matching funds, eligible and ineligible uses of grant and matching funds for planning or working capital activities, including requirements related to conflicts of interest and ineligible expenses in excess of 10 percent of total project costs, a substantive work plan and budget, independent feasibility study and/or business plan requirements for working capital projects (subject to Agency concurrence of financial feasibility, as defined in 7 CFR 4284.902), including demonstration of readiness to implement the working capital activities, and identification of the number of jobs expected to be created or saved as a result of the project; (3) Reserved Funds Eligibility requirements if you choose to compete for Reserved Funds as a Beginning Farmer or Rancher, a Socially Disadvantaged Farmer or Rancher, or if you propose to develop a Mid-Tier Value Chain; and (4) Priority Status Eligibility requirements if you request priority points in the competition for a project that contributes to increasing opportunities for Beginning Farmers or Ranchers, Socially Disadvantaged Farmers or Ranchers, or if you are an Operator of a Small or Medium-sized farm or ranch that is structured as a Family Farm, propose a Mid-Tier Value Chain project, or are a Farmer or Rancher Cooperative. For detailed requirements, see 7 CFR 4284.922, 7 CFR 4284.923 and 7 CFR 4284.924.
If you are applying for a working capital grant that requires a project-specific independent feasibility study and/or business plan, you must submit those documents with your application. In addition, you must summarize relevant results of the feasibility study and business plan in response to the scoring criteria, as applicable, because reviewers will not receive copies of your feasibility study or business plan when scoring your application. Based on the information presented in the application, including a feasibility study and/or business plan where required, the applicant must demonstrate that the project is financially feasible and can achieve the income, credit and cash flows to sustain the venture over the long term. Applications with inadequate information or projects deemed not financially feasible by the Agency will be deemed not eligible to compete for grant funding. See 7 CFR 4284.922(b)(6).
If you request Reserve Funds, you must document eligibility for the requirements stated in 7 CFR 4284.922(c). Ten percent of available funds are reserved to fund applications submitted by Beginning Farmers or Ranchers and Socially Disadvantaged Farmers or Ranchers, as defined in 7 CFR 4284.902. An additional 10 percent of available funds are reserved to fund Mid-Tier Value Chain projects. If your application is eligible, but does not receive Reserve Funding, it will automatically be considered for general funds in that same fiscal year, as funding levels permit and in accord with project ranking. As previously noted, Harvester operations are not considered a Farm or Ranch and are not eligible for Reserve Funds for a Beginning Farmer or Rancher or a Socially Disadvantaged Farmer or Rancher; however, Harvester operations may request Reserve Funds for a qualifying Mid-Tier Value Chain project, as applicable.
Your project timeframe or grant period can be a maximum of 36 months in length from the date of award. Your proposed grant period should begin no earlier than the anticipated award announcement date herein, January 18, 2013, and should end no later than 36 months following that date. If you receive an award, your grant period will be revised to begin on the actual date of award—the date the grant agreement is executed by the Agency—and your grant
Applications with ineligible expenses of more than 10 percent of total project costs will be ineligible to compete for funds. Eligible applications that are selected for award but contain ineligible expenses of 10 percent or less of total project costs must remove those ineligible expenses from the final project budget that is subject to approval by the Agency. See 7 CFR 4284.923 for examples of eligible planning and working capital use of funds, and see 7 CFR 4284.924 for examples of ineligible use of funds.
If your application is incomplete, it is ineligible to compete for funds.
(i) Please note that grant applicants must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number pursuant to 2 CFR 25.200(b). You must provide your DUNS number in the application, or it will be ineligible for funding. A DUNS number can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at
(ii) Please note also that pursuant to 2 CFR 25.200(b) grant applicants must register in the Central Contractor Registration (CCR) database, or its successor database known as the System for Award Management (SAM), prior to submitting an application; unless you are exempt under 2 CFR 25.110. Grant applicants must maintain an active CCR/SAM registration with current information at all times during which you have an active Federal award or an application under consideration by the Agency. An active CCR/SAM Registration Cage Code and expiration date must be included in your application or it will not be eligible for funding.
To register in the database, visit
(iii) Similarly, all recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation in accordance with 2 CFR part 170. So long as an entity applicant does not have exception under 2 CFR 170.110(b), the applicant must have the necessary processes and systems in place to comply with the reporting requirements should the applicant receive funding. See 2 CFR 170.200(b).
The application guide, government forms, regulation, and official program notifications for this funding opportunity can be obtained online at
You may submit your application in paper form or electronically through Grants.gov. Your application must contain all required information.
To submit an application electronically, you must follow the instructions for this funding announcement at
If you want to submit a paper application, send it to the State Office located in the State where your project will primarily take place. You can find State Office Contact information at
Your application must contain all of the required forms and proposal elements described in 7 CFR 4284.931, unless otherwise clarified in this notice. Specifically, your application must include (1) the required forms as described in 7 CFR 4284.931(a), except (i) you do not need to submit Form RD 1940-20, “Request for Environmental Information,” because planning and working capital requests in this program are generally excluded from the environmental review process, and (ii) corporate applicants must also complete Form AD-3030, “Representations Regarding Felony Conviction and Tax Delinquent Status for Corporate Applicants”; and (2) the required proposal elements as described in 7 CFR 4284.931(b). Further clarification of application requirements is as follows:
In addition, you must include a one-page Executive Summary containing the following information: legal name of applicant entity, application type (planning or working capital), applicant type, amount of grant request, a summary of your project, whether you are submitting a simplified application, and whether you are competing for reserve funds.
Further, certifications for the following, among others specified elsewhere, must be included in the application:
1. Awards made under this Notice are subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012, Public Law 112-55, Division A sections 738 and 739 regarding corporate felony convictions and corporate federal tax delinquencies. To comply with these provisions, all applicants must complete paragraph (A) of this representation, and all corporate applicants also must complete paragraphs (B) and (C) of this representation:
(A) Applicant, [insert applicant name], __ is __ is not (check one) an entity that has
(B) Applicant, [insert applicant name], __ has __ has not (check one) been convicted of a felony criminal violation under Federal or state law in the 24 months preceding the date of application. Applicant __ has __ has not (check one) had any officer or agent of the Applicant convicted of a felony criminal violation for actions taken on behalf of the Applicant under Federal or State law in the 24 months preceding the date of the signature on the application.
(C) Applicant, [insert applicant name], __ has __ does not have (check one) any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.
2. You must certify that there are no current outstanding Federal judgments against your property and that you will not use grant funds to pay for any judgment obtained by the United States. To satisfy this certification requirement, you should include this statement in your application: “[INSERT NAME OF APPLICANT] certifies that the United States has not obtained an unsatisfied judgment against its property and will not use grant funds to pay any judgments obtained by the United States.” A separate signature is not required.
If you are requesting less than $50,000 in working capital grant funds, you may submit a simplified application. See 7 CFR 4284.932. You are not required to provide an independent feasibility study or business plan. You are required to provide information to show the increases in customer base and revenues expected to be derived from the project that will benefit the producer applicants supplying the majority of the agricultural commodity for the project. References to information from third-party sources that support your conclusions will enhance your application and improve scoring. Also see 7 CFR 4284.922(b)(6)(ii).
If you are an Independent Producer applicant type applying for a working capital grant of $50,000 or more, and your project is for market expansion of an existing value-added product(s) that you have successfully produced and marketed for at least 2 years prior to the submission of the application, and is a value-added product that you have produced from more than 50 percent of your own agricultural commodity, you must submit a business or marketing plan for the project, but are not required to submit a feasibility study. Your application must contain adequate information to demonstrate the increases in customer base and revenues expected to be derived from the project that will benefit the applicant producers supplying the majority of the agricultural commodity for the project. References to information from third-party sources that support your conclusions will enhance your application and improve scoring. See 7 CFR 4284.922(b)(6)(i).
Funding limitations and reservations found in the program regulation will apply. See 7 CFR 4284.925.
Grant funds may be used to pay up to 50 percent of the total eligible project costs, subject to the limitations established for maximum total grant amount. Grant and matching funds may only be used for eligible purposes (see 7 CFR 4284.923) and may not be used for ineligible purposes (see 7 CFR 4284.924). If Program Income is earned during the grant period as a result of the project activities, it is subject to the requirements in 7 CFR 3019.24, and must be managed and reported accordingly.
The aggregate amount of awards to Majority Controlled Producer-Based Businesses in response to this announcement shall not exceed 10 percent of the total funds obligated for the program during the fiscal year.
In response to this announcement, 10 percent of total funding available will be used to fund projects that benefit Beginning Farmers or Ranchers, or Socially-Disadvantaged Farmers or Ranchers. In addition, 10 percent of total funding available will be used to fund projects that propose development of Mid-Tier Value Chains as part of a Local or Regional Supply Chain Network. See related definitions in 7 CFR 4284.902.
For this announcement, any Reserved Funds that have not been obligated by June 30, 2012, will be available to the Secretary to make VAPG grants from the fund categories addressed at 7 CFR 4284.922 (c). After awards have been selected from each Reserved Fund, any excess unobligated funds will revert to general funds.
Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs,” applies to this program. This EO requires that Federal agencies provide opportunities for consultation on proposed assistance with State and local governments that have chosen to participate in that process. Those states have established a Single Point of Contact (SPOC) to facilitate this consultation. For a list of states that maintain an SPOC, please see the White House Web site:
Applications will be reviewed and processed as described at 7 CFR 4284.940.
The Agency will conduct a review of your application to determine if it is complete and eligible. If the Agency determines that your application is ineligible at any time, then you will be notified in writing as to the reasons it was determined ineligible and you will be informed of any review or appeal rights.
If, at any time after you have submitted your application, you decide that you no longer want to request grant funding, you must notify the Agency in writing. Upon receipt of your notification, the Agency will rescind the award or withdraw the application, as applicable.
The Agency will only score applications in which the applicant and project are eligible, which are complete and sufficiently responsive to program requirements, and in which the Agency agrees on the likelihood of financial feasibility for working capital requests. We will score your application according to the procedures and criteria specified in 7 CFR 4284.942, and with tiered scoring thresholds as specified below.
For each criterion, you must show how the project has merit and why it is likely to be successful. If you do not address all parts of the criterion, or do
For both planning and working capital grants, you should discuss the technological feasibility of the project, as well as the operational efficiency, profitability, and overall economic sustainability resulting from the project. In addition, demonstrate the potential for expanding the customer base for the agricultural commodity or value-added product, and the expected increase in revenue returns to the producer-owners providing the majority of the raw agricultural commodity to the project. You should reference third-party information that specifically supports your value-added project; discuss the value-added process you are proposing; potential markets and distribution channels; the value to be added to the raw commodity through the value-added process; cost and availability of inputs, your experience in marketing the proposed or similar product; business financial statements; and any other relevant information that supports the viability of your project. Working capital applicants should demonstrate these concepts that will result from the project. Planning grant applicants should describe the expected results, and the reasons supporting those expectations.
Points will be awarded as follows:
(i) 0 points will be awarded if you do not substantively address this criterion.
(ii) 10 points will be awarded if the criterion is poorly addressed.
(iii) 20 points will be awarded if the criterion is partially addressed.
(iv) 30 points will be awarded if you clearly articulate the rationale for the project and show a high likelihood of success based on technological feasibility and economic sustainability.
You should identify and describe the qualifications of each person responsible for leading or managing the total project, as well as the people responsible for actually conducting the individual tasks in the work plan. You should discuss the credentials, education, capabilities, experience, availability and commitment of each person working on the project. If staff or consultants have not been selected at the time of application, you should describe the qualifications required for the positions to be filled. Points will be awarded as follows:
(i) 0 points will be awarded if you do not substantively address this criterion.
(ii) 10 points will be awarded if at least one of the identified staff or consultants demonstrates 5 or more years of relevant experience; or, if no project personnel have been identified but necessary qualifications for the positions to be filled are clearly described.
(iii) 20 points will be awarded if all of the identified staff demonstrates relevant qualifications and experience.
Your application must show that the project has strong direct financial, technical and logistical support from agricultural producers, end-users, and other third party contributors who are necessary for the successful completion of the project. All cash or in-kind contributions from producers, end users, or other contributors should be discussed. End-user commitments may include contracts or letters of intent or interest in purchasing the value-added product. Third-party commitments may include evidence of critical partnerships, logistical, or technical support necessary for the project to succeed. Points will be awarded as follows:
(i) 0 points will be awarded if you do not show that you have quality commitments or support from producers, end-users or other critical third party contributors.
(ii) 5 points will be awarded if you partially show real, high quality direct support or commitments from at least one producer, end user, or other third party contributor.
(iii) 10 points will be awarded if you show real, high quality direct support or commitments from multiple producers, end-users and critical third-party contributors.
You must submit a comprehensive work plan and budget (for full details, see 7 CFR 4284.922(b)(5)). Your work plan must provide specific and detailed descriptions of the tasks and the key project personnel that will accomplish the project's goals. The budget must present a detailed breakdown of all estimated costs of project activities and allocate those costs among the listed tasks. You must show the source and use of both grant and matching funds for all tasks. Matching funds must be spent at a rate equal to, or in advance of, grant funds. An eligible start and end date for the project and for individual project tasks must be clearly shown and may not exceed Agency specified timeframes for the grant period. Working Capital applications must include an estimate of Program Income expected to be earned during the grant period (see 7 CFR 3019.24).
(i) 0 points will be awarded if the work plan and budget do not substantively address this criterion.
(ii) 10 points will be awarded if the work plan and budget only partially address this criterion.
(iii) 20 points will be awarded if a detailed, comprehensive work plan and budget is provided.
Priority points may be awarded in both the general funds competition, as well as the Reserve Funds competitions. You may request priority points if you meet the requirements for one of the following categories and provide the documentation described in 7 CFR 4284.922(d), as applicable:
Beginning Farmer or Rancher, or
Socially Disadvantaged Farmer or Rancher, or
Operator of a Small or Medium-sized farm or ranch that is structured as a Family Farm, or
Farmer or Rancher Cooperative, or
Mid-Tier Value Chain project.
It is recommended that you use the Agency application package when applying for priority points and refer to the documentation requirements specified in 7 CFR 4284.922(d). Harvester operations are not considered a Farm or Ranch and are not eligible for priority points for a Beginning Farmer or Rancher, a Socially Disadvantaged Farmer or Rancher, an Operator of a Small or Medium-sized farm or ranch that is structured as a Family Farm, or a Farmer or Rancher Cooperative; however, Harvester operations may request priority points for a qualifying
The Administrator of USDA Rural Development Business-Cooperative Service (RBS) may choose to award up to 10 points to an application to improve the geographic diversity of awardees in a fiscal year.
The Agency will select applications for award under this Notice in accordance with the provisions specified in 7 CFR 4284.950(a).
We will first review your application for eligibility and to determine if it is complete and sufficiently responsive to the requirements of the program to allow for an informed review (see 7 CFR 4284.940).
If your application is eligible and complete, it will be scored by two reviewers based on criteria specified in section V.B. of this Notice. One of these reviewers will be a Rural Development employee from your servicing State Office and the other reviewer will be a non-Federal, independent reviewer. The State Office may enlist the support of technical experts, qualified as described below and approved by the State Director, to assist the State Office scoring process. All reviewers must meet the following qualifications. Reviewers must have at least a bachelor's degree in one or more of the following fields: agri-business, business, economics, finance, or marketing. They must also have a minimum of 3 years of experience in an agriculture-related field (e.g. farming, marketing, consulting, university professor, research, officer for trade association, government employee for an agricultural program). If the reviewer does not have a degree in one of those fields, he/she must have at least 5 years of working experience in an agriculture-related field.
Both reviewers will score evaluation criteria 1 through 4 and the totals for each reviewer will be added together and averaged. The Rural Development reviewer will also assign priority points based on criterion 5 in section V.B. of this Notice. These will be added to the average score. The sum of these scores will be ranked high to low and this will comprise the initial ranking.
The Administrator of RBS may choose to award up to 10 Administrator priority points based on criterion 6 in section V.B. of this Notice. These points will be added to the cumulative score for a total possible score of 100.
A final ranking will be obtained based solely on the scores received for criteria 1 through 6. Applications for reserved funding will be funded in rank order until funds are depleted. Unfunded reserve category applications will be returned to the general funds category where applications will be funded in rank order until the funds are depleted. Funding for Majority Controlled Producer-Based Business Ventures (MAJ) is limited to 10 percent of total grant funds expected to be obligated as a result of this Notice. MAJ applications will be funded in rank order until the funding limitation has been reached. Grants to MAJ applicants from reserved funds will count against this funding limitation.
If your application is ranked, but not funded, it will not be carried forward into the next competition. We will notify you in writing if your application is not selected for funding and inform you of any appeal rights. You may submit an updated application for consideration during the next round of funding.
If your application is successful, you will receive notification regarding funding from the State Office where your application is submitted or where the project will primarily take place if you submit your application via Grants.gov. You must comply with all applicable statutes, regulations, and notice requirements before the grant award will be approved. See 7 CFR 4284.951. If your application is not successful, you will receive notification, including review, mediation procedures and appeal rights, by mail. See 7 CFR part 11.
A person may seek a review of an Agency decision or appeal to the National Appeals Division in accordance with 7 CFR part 11.
All recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation (see 2 CFR part 170). You will be required to have the necessary processes and systems in place to comply with the Transparency Act reporting requirements (see 2 CFR 170.200(b), unless you are exempt under 2 CFR 170.110(b)).
The provisions of 7 CFR 4284.905 applies to this Notice, which includes requiring applicants to be in compliance with other applicable Federal laws.
The provisions of 7 CFR 4284.960 applies to this Notice.
All grants awarded under this Notice shall be serviced in accordance with 7 CFR part 1951, subparts E and O as applicable, and the Departmental Regulations (7 CFR parts 3000-3099), with the exception that delegation of the post-award servicing of the program does not require the prior approval of the Administrator.
Any transfer of funds obligated under this Notice from an applicant to a different applicant must comply with the requirements specified in 7 CFR 4284.962.
The provisions of 7 CFR 4284.963 applies to this Notice.
The provisions of 7 CFR 4284.904 applies to this Notice.
Unless specifically stated otherwise in this Notice or in 7 CFR part 4284, subpart J, this Notice incorporates by reference the regulations of the Department of Agriculture's Office of Chief Financial Officer (or successor office) as codified in 7 CFR parts 3000 through 3099, including, but not necessarily limited to, 7 CFR parts 3015 through 3019, 7 CFR part 3021, 7 CFR part 3052, and 2 CFR parts 25, 170 and 417; and successor regulations to these parts.
This Notice incorporates by reference the cost principles found in 2 CFR part 230 and in 48 CFR 31.2.
All recipients under this Notice are subject to the requirements of 7 CFR part 1940, subpart G and any successor regulations. However, 7 CFR 1940.333, 7 CFR 1940.310(c)(1) and 7 CFR 1940.317(g)(2) generally exclude applications for both planning and working capital grants.
If you have questions about this Notice, please contact the State Office as identified in the
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. Not all prohibited bases apply to all programs. Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination write to USDA, Director, Office of Adjudication and Compliance, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender.
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).
The California Signage Plan is an organized and systematic way to develop and install graphic signs along the California coastline and inland that interpret the natural and cultural resources of a particular location and its connection to the sanctuaries located within California. To date, a strategic approach to evaluating interpretive signs produced by the Office of National Marine Sanctuaries has not been developed; therefore, we do not know if the messages we are trying to convey to our audiences are effective. We are proposing to conduct an online and onsite survey of approximately 400 visitors to the locations where signs are currently installed. The questions outlined in the survey examine the public's use of the signs, understanding of the signs' content, understanding and awareness of protected areas/zones and how those messages are portrayed in regulatory signs, demographics of the target audience, interest in alternate sources of interpretive content, perception of the National Marine Sanctuaries identity, and awareness of the national marine sanctuary system.
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
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Quad-City Foreign-Trade Zone, Inc., grantee of FTZ 133, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on August 8, 2012.
FTZ 133 was approved by the Board on October 29, 1986 (Board Order 338, 51 FR 40238, 11-5-1986) and expanded on March 31, 2011 (Board Order 1749, 76 FR 19746, 4-8-2011).
The current zone includes the following sites:
The grantee's proposed service area under the ASF would be Henderson, Henry, Mercer, Rock Island and Warren Counties, Illinois as well as Cedar, Clinton, Des Moines, Dubuque, Henry, Jackson, Johnson, Jones, Lee, Louisa, Muscatine, Scott and Washington Counties, Iowa, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Davenport, Iowa-Moline and Rock Island, Illinois Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 15, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to October 29, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
The McAllen Foreign Trade Zone, Inc., grantee of FTZ 12, submitted a notification of proposed production activity on behalf of TST NA Trim, LLC (TST), located in Hidalgo, Texas. The notification conforming to the requirements of the regulations of the Board (15 CFR 400.22) was received on July 25, 2012.
A separate application for subzone status at the TST facility was submitted and will be processed under Section 400.31 of the Board's regulations. Activity at the facility involves the lamination and cutting of automotive upholstery material for export (no shipments for U.S. consumption would occur). Production under FTZ procedures could exempt TST from customs duty payments on the foreign status upholstery materials used in export production (100% of shipments). Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Upholstery fabrics and material sourced from abroad include: laminated (polyurethane coated) polyester knit, polyester warp knit (pile), polyester and nylon warp knit, and leather (duty rate ranges from free to 17.2%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is September 24, 2012.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Pierre Duy at
Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (2012) (“EAR” or the “Regulations”), I hereby grant the request of the Office of Export Enforcement (“OEE”) to renew the February 15, 2012 Order Temporarily Denying the Export Privileges of Mahan Airways, Zarand Aviation, Gatewick LLC, Pejman Mahmood Kosarayanifard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, and Ali Eslamian, as modified by an order dated April 9, 2012, adding Mahan Air General Trading LLC, Skyco (UK) Ltd., and Equipco (UK) Ltd. as related persons. I find that renewal of the Temporary Denial Order (“TDO”) is necessary in the public interest to prevent an imminent violation of the EAR.
On March 17, 2008, Darryl W. Jackson, the then-Assistant Secretary of Commerce for Export Enforcement (“Assistant Secretary”), signed a TDO denying Mahan Airways' export privileges for a period of 180 days on the grounds that its issuance was
The TDO subsequently has been renewed in accordance with Section 766.24(d), including most recently on February 15, 2012, with modifications and the additions of related persons having been made to the TDO during 2010, 2011, and most recently on April 9, 2012.
On July 24, 2012, BIS, through its Office of Export Enforcement (“OEE”), filed a written request for renewal of the TDO. The current TDO dated February 15, 2012, will expire, unless renewed, on August 13, 2012. Notice of the renewal request was provided to Mahan Airways and Zarand Aviation by delivery of a copy of the request in accordance with Sections 766.5 and 766.24(d) of the Regulations. Although not required by the Regulations, courtesy copies of the renewal request were sent to the other parties, originally named to the TDO as related persons. No opposition to any aspect of the renewal of the TDO has been received from either Mahan Airways or Zarand Aviation. Furthermore, no appeal of the related person determinations I made as part of the of the September 3, 2010, February 25, 2011, August 24, 2011, and April 9, 2012 Renewal Orders has been made by Gatewick LLC, Kosarian Fard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco (UK) Ltd., or Equipco (UK) Ltd.
Pursuant to Section 766.24, BIS may issue or renew an order temporarily denying a respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations. 15 CFR 766.24(b)(1) and 776.24(d). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO and the TDO renewals in this matter and the evidence developed over the course of this investigation indicating a blatant disregard of U.S. export controls and the TDO. The initial TDO was issued as a result of evidence that showed that Mahan Airways and other parties engaged in conduct prohibited by the EAR by knowingly re-exporting to Iran three U.S.-origin aircraft, specifically Boeing 747s (“Aircraft 1-3”), items subject to the EAR and classified under Export Control Classification Number (“ECCN”) 9A991.b, without the required U.S. Government authorization. Further evidence submitted by BIS indicated that Mahan Airways was involved in the attempted re-export of three additional U.S.-origin Boeing 747s (“Aircraft 4-6”) to Iran.
As discussed in the September 17, 2008 TDO Renewal Order, evidence presented by BIS indicated that Aircraft 1-3 continued to be flown on Mahan Airways' routes after issuance of the TDO, in violation of the Regulations and the TDO itself.
The March 9, 2010 Renewal Order also noted that a court in the United Kingdom (“U.K.”) had found Mahan Airways in contempt of court on February 1, 2010, for failing to comply with that court's December 21, 2009 and January 12, 2010 orders compelling Mahan Airways to remove the Boeing 747s from Iran and ground them in the Netherlands. Mahan Airways and the Balli Group Respondents had been litigating before the U.K. court concerning ownership and control of Aircraft 1-3. In a letter to the U.K. court dated January 12, 2010, Mahan Airways' Chairman indicated,
The September 3, 2010 Renewal Order pointed out that Mahan Airways' violations of the TDO extended beyond operating U.S.-origin aircraft in violation of the TDO and attempting to acquire additional U.S.-origin aircraft. In February 2009, while subject to the TDO, Mahan Airways participated in the export of computer motherboards, items subject to the Regulations and designated as EAR99, from the United States to Iran, via the UAE, in violation of both the TDO and the Regulations, by transporting and/or forwarding the computer motherboards from the UAE to Iran. Mahan Airways' violations were facilitated by Gatewick LLC, which not only participated in the transaction, but also has stated to BIS that it is Mahan Airways' sole booking agent for cargo and freight forwarding services in the UAE.
Moreover, in a January 24, 2011 filing in the U.K. Court, Mahan Airways asserted that Aircraft 1-3 were not being used, but stated in pertinent part that the aircraft were being maintained in Iran especially “in an airworthy condition” and that, depending on the outcome of its U.K. Court appeal, the aircraft “could immediately go back into service.* * * on international routes into and out of Iran.” Mahan Airways' January 24, 2011 submission to U.K. Court of Appeal, at p. 25, paragraphs 108,110. This clearly stated intent, both on its own and in conjunction with Mahan Airways' prior misconduct and statements, demonstrated the need to renew the TDO in order to prevent imminent future violations.
More recently, as noted in the July 1, 2011 and August 24, 2011 Orders, Mahan Airways has continued to evade U.S. export control laws by operating two Airbus A310 aircraft
At the time of the July 1, 2011 and August 24, 2011 Orders, these Airbus A310s were registered in France, with tail numbers F-OJHH and F-OJHI, respectively. After the August 24, 2011 renewal, Mahan Airways and Zarand Aviation worked in concert, along with Kerman Aviation, to de-register the two Airbus A310 aircraft in France and to register both aircraft in Iran (with, respectively, Iranian tail numbers EP-MHH and EP-MHI).
OEE has presented evidence with its current renewal request indicating that apparently some time after the February 15, 2012 renewal, the registration switch for these A310s was cancelled, and that these two aircraft are flying with Mahan livery under French registration (with tail numbers F-OJHH and F-OJHI, respectively), instead of Iranian registration. Most significantly, OEE's evidence indicates that both aircraft are active in Mahan Airways' fleet on flights in and out of Iran. These violations of the TDO, including those involving the Zarand Aviation aircraft, indicate that the aircraft likely will continue to operate in a manner contrary to U.S. export control laws.
OEE also has obtained and submitted new evidence that Mahan Airways has obtained another Airbus A310 aircraft. This aircraft (Manufacturer Serial Number 499) is listed on Mahan's Air Fleet list with the Iranian registered tail number EP-VIP and referred to as a “VIP Aircraft” with a former registration number of “1022.” Open source information submitted by OEE indicates that an A310 with a German Air Force designation of 10-22 served as the German “presidential” aircraft, was sold in Germany as surplus in late 2011, re-sold shortly thereafter to what was identified as an Eastern European investment group, and then re-sold and transported to Mahan Airways in Iran via the Ukraine. This acquisition and reexport by and/or for Mahan Airways violated the TDO and the Regulations. In addition, although the Mahan Air Fleet list submitted by OEE indicates that this aircraft was parked in Tehran as of mid-July 2012, OEE reasonably believes that additional reexport violations are imminent in connection with this aircraft.
OEE's renewal request also includes additional evidence relating to previously discussed efforts by related persons to procure aircraft and aircraft parts for Mahan Airways in violation of the TDO and the Regulations. As detailed in prior orders, Ali Eslamian was added as a related person on August 24, 2011. Among other pertinent activities, he formed Skyco (UK) Ltd. (“Skyco”), which buys and sells aircraft, aircraft engines and other aviation related services, with Mahan Airways' Managing Director (Hamid Arabnejad) and its Vice-President for Business Development (Ghulam Redha Khodra Mahmoudi a/k/a Gholemreza Mahmoudi), in order to carry out transactions on behalf of Mahan Airways and acquire items that Mahan could not obtain on its own due to the U.S. embargo against Iran.
Eslamian's involvement in Mahan Airways' original conspiracy to acquire U.S.-origin Boeing 747s that led to the initial issuance of the TDO included inspecting the 747s and participating in the initial meetings between Mahan and the Balli Group principals during which it was proposed that the Balli Group or Balli entities would act as a front for Mahan in its scheme to acquire U.S.-origin aircraft. Eslamian has admitted longstanding business relationships and connections to senior Mahan Airways officers and/or directors, including Mr. Arabnejad and Mr. Mahmoudi, and has detailed insight into how Mahan Airways maintains and repairs its aircraft through the use of facilities in third countries.
Prior orders in this matter also discuss the evidence that Eslamian has negotiated, including through his company Equipco (UK) Ltd. (“Equipco”), with a Brazilian airline for the purchase of two Airbus A-320 aircraft and one aircraft engine, all items that are subject to the Regulations and require U.S. Government authorization for re-export to Iran.
As set forth in the April 9, 2012 order, Mahan Air General Trading's articles of incorporation list Mahan Airways' Managing Director, Hamid Arabnejad, as an owner. Mahan Air General Trading also shares the same Dubai address and fax number with Sirjanco Trading LLC, another denied party that is related to Mahan Airways and acquires and resells aircraft parts and components. Sirjanco is owned in part by Mr. Mahmoudi, Mahan's Vice-President for Business Development.
Under the applicable standard set forth in Section 766.24 of the Regulations and my review of the record here, I find that the evidence presented by BIS convincingly demonstrates that Mahan Airways has continually violated the EAR and the TDO, that such knowing violations have been significant, deliberate and covert, and that there is a likelihood of future violations. Additionally, Zarand Aviation's Airbus A310 continues to be operated on routes into and out of Iran in violation of the Regulations and the TDO itself, and as discussed in prior orders, Zarand Aviation has acted in concert with Mahan Airways in an effort to evade the TDO and U.S. export control laws. Therefore, renewal of the TDO is necessary to prevent imminent violation of the EAR and to give notice to companies and individuals in the United States and abroad that they should continue to cease dealing with Mahan Airways, Zarand Aviation, and the other denied persons under the TDO in export transactions involving items subject to the EAR. The conduct of Mahan Airways, Zarand Aviation, and those related to them or acting in concert with them, such as Kerman Aviation, Ali Eslamian, Skyco (UK) Ltd. and Equipco (UK) Ltd., raise significant ongoing concerns relating to the acquisition and use of aircraft, aircraft engines or other parts, and aircraft services in violation of the Regulations and the TDO.
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
In accordance with the provisions of Sections 766.24(e) of the EAR, Mahan Airways and/or Zarand Aviation may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022. In accordance with the provisions of Sections 766.23(c)(2) and 766.24(e)(3) of the EAR, Gatewick LLC, Mahmoud Amini, Kosarian Fard, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by Mahan Airways and/or Zarand Aviation as provided in Section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be provided to Mahan Airways, Zarand Aviation and each related person and shall be published in the
Import Administration, International Trade Administration, Department of Commerce.
On July 31, 2012, the United States Court of International Trade (CIT) affirmed the Department of Commerce's (the Department's) results of third redetermination pursuant to the CIT's remand in
Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in
Dennis McClure, AD/CVD Operations, Office 3, Import Administration—International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-5973.
On February 14, 2007, the Department published its final results of the ninth administrative review of the antidumping duty order on certain pasta from Italy.
Atar challenged the Department's
On September 3, 2009, the Department filed its first remand redetermination with the CIT, recalculating CV profit and ISE using a weighted average of the sales data from two of the six respondents in the prior review because only those two respondents had earned a profit when the Department included sales made outside the ordinary course of trade in the profit calculation.
On July 19, 2010, the Department filed its second remand redetermination with the CIT.
The CAFC subsequently issued a decision in
Pursuant to the Court's remand order in
In its decision in
Because there is now a final court decision, the weighted-average dumping margin for Atar for the period July 1, 2004, through June 30, 2005, is 11.76 percent. However, in accordance with the Section 129 Determination, Atar's cash deposit rate is 0.00 percent.
In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct CBP to assess antidumping duties on entries of the subject merchandise during the POR from Atar based on the revised assessment rates calculated by the Department.
This notice is issued and published in accordance with sections 516A(c), 751(a), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On March 27, 2012, in
Matthew Renkey, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2312.
On July 13, 2009, the Department issued a final scope ruling on carbon steel butt-weld pipe fittings from the PRC used in structural applications.
In
As noted above, the CAFC subsequently reversed the CIT's decision in
In accordance with the CAFC's decision in
This notice is issued and published in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.225.
Import Administration, International Trade Administration, Department of Commerce.
August 15, 2012.
On April 12, 2012, the U.S. Department of Commerce (“the Department”) published the preliminary results of the administrative review of the antidumping duty order on saccharin from the People's Republic of China (“PRC”) for the period of review (“POR”) July 1, 2010, through June 30, 2011.
Paul Stolz, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4474.
On April 12, 2012, the Department published the preliminary results of this administrative review in the
The period of review is July 1, 2010 through June 30, 2011.
The product covered by the antidumping duty order is saccharin. Saccharin is defined as a non-nutritive sweetener used in beverages and foods, personal care products such as toothpaste, table top sweeteners, and animal feeds. It is also used in metalworking fluids. There are four primary chemical compositions of saccharin: (1) Sodium saccharin (American Chemical Society Chemical Abstract Service (“CAS”) Registry 128-44-9); (2) calcium saccharin (CAS Registry 6485-34-3); (3) acid (or insoluble) saccharin (CAS Registry 81-07-2); and (4) research grade saccharin. Most of the U.S.-produced and imported grades of saccharin from the PRC are sodium and calcium saccharin, which are available in granular, powder, spray-dried powder, and liquid forms. The merchandise subject to the order is currently classifiable under subheading 2925.11.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”) and includes all types of saccharin imported under this HTSUS subheading, including research and specialized grades. Although the HTSUS subheading is provided for convenience and customs purposes, the Department's written description of the scope of the order remains dispositive.
In the preliminary results of this review the Department stated that it intended to rescind this review with respect to Kingchem, for which the request for review was timely withdrawn.
In the
In the
For all shipments of the subject merchandise by the PRC-wide entity entered, or withdrawn from warehouse, for consumption during the POR we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties at the
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (“the Act”): (1) For previously investigated or reviewed PRC and non-PRC exporters that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide entity rate of 329.94 percent; and (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation, which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to the North Slope Borough Department of Wildlife Management, P.O. Box 69, Barrow, AK 99723 [Taqulik Hepa, Responsible Party; Dr. John C. George, Principal Investigator] to collect, import, export, and receive marine mammal parts for scientific research.
The permit and related documents are available for review upon written request or by appointment in the following offices:
Laura Morse or Amy Sloan, (301) 427-8401.
On June 19, 2012 notice was published in the
The permit authorizes the collection, receipt, import and export of samples of marine mammals taken by Alaskan Native subsistence hunters; and the receipt, import, and export of specimens from legal foreign (Russia and Canada) and domestic subsistence-collected marine mammals of the following species: bearded seal (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information on spectrum management policy matters.
The meeting will be held on October 4, 2012, from 10 a.m. to 1 p.m., Eastern Daylight Time.
The meeting will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4830, Washington, DC 20230. Public comments may be mailed to Commerce Spectrum Management Advisory Committee, National Telecommunications and Information Administration, 1401 Constitution Avenue NW., Room 4099, Washington, DC 20230 or emailed to
Bruce M. Washington, Designated Federal Officer, at (202) 482-6415 or
1. WG11695-1710 MHz Weather Satellite Receive Earth Stations,
2. WG21755-1850 MHz Law Enforcement Surveillance and other short-range fixed,
3. WG31755-1850 MHz Satellite Control Links and Electronic Warfare,
4. WG41755-1850 MHz Fixed Point-to-Point and Tactical Radio Relay, and
5. WG51755-1850 MHz Airborne Operations.
NTIA will post a detailed agenda on its Web site,
10 a.m., Friday September 7, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 21, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 21, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 28, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 14, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
Department of the Navy, DoD.
Notice of Record of Decision.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, 42 United States Code (U.S.C) 4321-4374, as implemented by the Council on Environmental Quality regulations, 40 Code of Federal Regulations (CFR) Parts 1500-1508, Department of the Navy (DoN) NEPA regulations (32 CFR part 775), and Marine Corps Order P5090.2A (with Changes 1 and 2) Marine Corps Environmental Compliance and Protection Manual, Chapter 12, the DoN announces its decision to base and operate up to two Marine Medium Tiltrotor (VMM) squadrons (up to 12 MV-22 Osprey per squadron, for a total of 24 aircraft) and one Marine Light Attack Helicopter (HMLA) squadron (15 AH-1 Cobra attack and 12 UH-1 Huey utility helicopters, for a total of 27 aircraft) in support of III Marine Expeditionary Force elements in Hawaii.
The tiltrotor MV-22 Osprey aircraft provides the “next generation equipment” offering increased speed, longer range, and greater mission versatility than a helicopter. The MV-22 also satisfies the medium-lift capability needed for assault support transport of combat troops, equipment, and supplies. The HMLA squadron will be relocated from Marine Corps Base (MCB) Camp Pendleton to provide rotary-wing light-lift and attack capabilities not currently based in Hawaii and routine training with infantry. The 3d Regiment at MCB Hawaii Kaneohe Bay is the only infantry regiment within the Marine Corps that
In support of the proposed action to base and operate up to two VMM squadrons and one HMLA squadron in Hawaii, the DoN will: (1) Implement facilities projects at MCB Hawaii Kaneohe Bay to accommodate the squadrons, to include demolition, new construction, and renovation; (2) conduct aviation training, readiness, and special exercise operations at training facilities and federally obligated state airports statewide; and (3) construct improvements at selected training facilities.
All practical means to avoid or minimize environmental harm from the selected alternative have been adopted.
The complete text of the Record of Decision is available for public viewing on the project Web site at
Defense Nuclear Facilities Safety Board.
Notice of Public Meeting and Hearing.
Pursuant to the provisions of the “Government in the Sunshine Act”
(5 U.S.C. 552b), and as authorized by 42 U.S.C. 2286b, notice is hereby given of the Defense Nuclear Facilities Safety Board's (Board) public meeting and hearing described below. The Board invites interested persons or groups to present comments, technical information, or data concerning safety issues related to the matters to be considered.
Session I: 1 p.m.—5 p.m., October 2, 2012; Session II: 6:30 p.m.—9 p.m., October 2, 2012.
Knoxville Convention Center, 701 Henley Street, Knoxville, Tennessee 37902.
Open. While the Government in the Sunshine Act does not require that the scheduled discussion be conducted in a meeting, the Board has determined that an open meeting in this specific case furthers the public interests underlying both the Sunshine Act and the Board's enabling legislation.
In Session I of this public meeting and hearing, the Board will examine the National Nuclear Security Administration's (NNSA) efforts to mitigate risks to public and worker safety posed by aging defense nuclear facilities at the Y-12 National Security Complex. The Board will receive testimony from NNSA and its contractors concerning the operations at existing Y-12 defense nuclear facilities, including Building 9212, Building 9204-2E, and Building 9215. The Board is interested in actions taken to address recent issues with conduct of operations, maintenance, and work planning; the contractor's processes for identifying and resolving safety issues; and the effectiveness of NNSA's oversight for nuclear operations. The Board will also examine the status of emergency preparedness at Y-12 and will receive testimony concerning how well NNSA and its contractor are prepared to respond to severe events and site emergencies. The Board is interested in lessons learned from the events at the Fukushima Daiichi complex and the actions taken to incorporate these lessons learned at the site-wide level and in defense nuclear facility operations. During Session II, the Board will receive testimony regarding factors that could affect the timely execution and safety of the Uranium Processing Facility (UPF) project. These factors include the federal project team's strategy for identifying and resolving safety issues in a timely manner. The Board is also interested in exploring the potential safety impacts of NNSA's decision to accelerate the acquisition of select processing capabilities and defer others to a later date, as well as the potential for weaknesses in technology development to impact safety. The public hearing portion of this proceeding is authorized by 42 U.S.C. 2286b.
Debra Richardson, Deputy General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004-2901, (800) 788-4016. This is a toll-free number.
Public participation in the hearing is invited. The Board is setting aside time at the end of each session of the hearing for presentations and comments from the public. Requests to speak may be submitted in writing or by telephone. The Board asks that commenters describe the nature and scope of their oral presentations. Those who contact the Board prior to close of business on September 28, 2012, will be scheduled to speak at the session of the hearing most relevant to their presentations. At the beginning of Session I, the Board will post a schedule for speakers at the entrance to the hearing room. Anyone who wishes to comment or provide technical information or data may do so in writing, either in lieu of, or in addition to, making an oral presentation. The Board Members may question presenters to the extent deemed appropriate. Documents will be accepted at the hearing or may be sent to the Board's Washington, DC, office. The Board will hold the record open until November 2, 2012, for the receipt of additional materials. The hearing will be presented live through Internet video streaming. A link to the presentation will be available on the Board's Web site (
Department of Education.
Notice.
As required by the Paperwork Reduction Act of 1995, this notice
Interested persons are invited to submit comments on or before October 15, 2012.
Comments may be submitted electronically by emailing
The Secretary is publishing this request for comment under the Provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The determination of need and eligibility are for the following Title IV, HEA, federal student financial assistance programs: the Federal Pell Grant Program; the Campus-Based programs (Federal Supplemental Educational Opportunity Grant, Federal Work-Study, and the Federal Perkins Loan Program); the William D. Ford Federal Direct Loan Program; the Teacher Education Assistance for College and Higher Education Grant; and the Iraq and Afghanistan Service Grant.
Federal Student Aid, an office of the U.S. Department of Education (hereafter “the Department”), subsequently developed an application process to collect and process the data necessary to determine a student's eligibility to receive Title IV, HEA program assistance. The application process involves an applicant's submission of the
The Department seeks OMB approval of all application components as a single “collection of information”. The aggregate burden will be accounted for under OMB Control Number 1845-0001. The specific application components, descriptions and submission methods for each are listed in Table 1.
This information collection also documents an estimate of the annual public burden as it relates to the application process for federal student aid. The Applicant Burden Model (ABM), measures applicant burden through an assessment of the activities each applicant conducts in conjunction with other applicant characteristics and in terms of burden, the average applicant's experience. Key determinants of the ABM include:
■ The total number of applicants that will potentially apply for federal student aid;
■ How the applicant chooses to complete and submit the FAFSA (e.g., by paper or electronically via FOTW);
■ How the applicant chooses to submit any corrections and/or updates (e.g., the paper SAR or electronically via FOTW Corrections);
■ The type of SAR document the applicant receives (eSAR, SAR acknowledgment, or paper SAR);
■ The formula applied to determine the applicant's expected family contribution (full need analysis formula, Simplified Needs Test or Automatic Zero); and
■ The average amount of time involved in preparing to complete the application.
The ABM is largely driven by the number of potential applicants for the application cycle. The total application projection for 2013-2014 is based upon two factors—estimates of the total enrollment in all degree-granting
For 2013-2014, the Department is reporting a net burden reduction of 3,398,000 hours. The reduction is a reflection of the effects of simplifying FAFSA on the Web, which is utilized by the majority of applicants who apply for aid. Simplification of the application is demonstrated by (1) the average completion times for initial submissions and; (2) fewer corrections being made to the application.
The projected average completion times for initial submissions has decreased by 11 minutes for 2013-14. In data reported in the 2012-2013 supporting statement, first-time filers using FOTW would take approximately 1.30 hours (78 minutes) to submit an application. The data from 2011-12 indicate that the same user would be able to submit their application in 1.12 hours (67 minutes), reducing their burden by .18 hours (11 minutes).
Corrections are also projected to decrease by 760,696 responses for 2013-14. Fewer corrections mean that more comprehensive and accurate data was captured in the initial submission of the application.
Updated completion times were calculated for each component and have been used to estimate the burden, excluding the change in the applicant volume. The results demonstrate that the burden for all applicants would have decreased by almost 13 percent or 3,758,702 hours, if the application volume had remained constant.
If the Department had not simplified the application process, thus reducing the time required to complete the FAFSA, the new burden estimates would only need to account for the change in applicants. The 1.43% increase in applicants would result in an increase in burden of 347,945 hours.
Accounting for both the increase in total applicants and the decrease in individual applicant burden, the net change is an overall decrease of almost 12 percent or 3,398,000 hours. The following Table shows the net burden change and total cost for applicants. The change in total annual responses is also listed in the Table. Total annual responses include the original FAFSA submission and corrections.
The Department takes pride in the continued efforts to simplify the FAFSA submission process and the continued decrease in burden associated with the application process, even as the Department serves more students each year. The results confirm the significant improvements that have been made to the application process. The Department believes that these changes will lead to more students completing the FAFSA and will assist more students with their pursuit of postsecondary education through access to Title IV, HEA program assistance.
The Secretary is publishing this request for comment under the Provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The Perkins Discretionary Grant Performance Report will be used for interim and final performance reporting. The Perkins Discretionary Grant Performance Report form will also be used by grant recipients for other interim reporting such as quarterly or semi-annual performance and/or financial reporting.
Interested persons are invited to submit comments on or before October 15, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Elementary and Secondary Education, Department of Education.
Notice; correction.
On June 6, 2012, we published in the
Fran Walter, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W115, Washington, DC 20202-0001. Telephone: (202) 205-9198 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
1. On page 33564, first column, under the heading
2. On page 33567, second column, under the heading “3.
3. On page 33567, second column, under the heading “4.
You may also access documents of the Department published in the
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing
Take notice that on July 31, 2012, NorthWestern Corporation (NorthWestern) filed a Rate Election pursuant to 284.123(b)(1) of the Commissions regulations and to revise its Statement of Operating Conditions. NorthWestern proposes to utilize rates that are the same as those contained in NorthWestern's storage and transportation rate schedules for comparable intrastate service on file with the Montana Public Service Commission as more fully detailed in the petition.
Any person desiring to participate in this rate filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Chemical Substances Inventory (TSCA Inventory)) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before September 14, 2012.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0612, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer, Reporting and recordkeep