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Federal Retirement Thrift Investment Board.
Direct final rule; correcting amendment.
The Federal Retirement Thrift Investment Board (Agency) published a direct final rule in the February 27, 2012,
Effective October 9, 2012 and is applicable beginning February 27, 2012.
Erin F. Graham, (202)–942–1605.
This document contains corrections to FRTIB regulations stemming from the direct final rule published in the February 27, 2012,
Courts, Freedom of information, Government employees.
Accordingly, 5 CFR part 1631 is amended by making the following correcting amendment:
5 U.S.C. 552.
Office of the Comptroller of the Currency, Treasury (OCC).
Final rule.
This final rule revises the requirements imposed on national banks pursuant to the OCC's short-term investment fund (STIF) rule (STIF Rule). Regulations governing Federal savings associations (FSAs) require compliance with the national bank STIF Rule. The final rule adds safeguards designed to address the risk of loss to a STIF's principal, including measures governing the nature of a STIF's investments, ongoing monitoring of its mark-to-market value and forecasting of potential changes in its mark-to-market value under adverse market conditions, greater transparency and regulatory reporting about a STIF's holdings, and procedures to protect fiduciary accounts from undue dilution of their participating interests in the event that the STIF loses the ability to maintain a stable net asset value (NAV).
The final rule is effective on July 1, 2013. Comments are solicited only on the Paperwork Reduction Act aspects of this final rule and must be submitted by November 8, 2012.
Comments on the Paperwork Reduction Act aspects of this final rule should be directed to: Communications Division, Office of the Comptroller of the Currency, Mailstop 2–3, Attention: 1557–NEW, 250 E Street SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874–5274 or by electronic mail to
Joel Miller, Group Leader, Asset Management (202) 874–4493, David Barfield, National Bank Examiner, Market Risk (202) 874–1829, Patrick T. Tierney, Counsel, Legislative and Regulatory Activities Division (202) 874–5090, Suzette H. Greco, Assistant Director, or Adam Trost, Senior Attorney, Securities and Corporate Practices Division (202) 874–5210, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219.
A collective investment fund (CIF) is a bank-managed fund that holds pooled fiduciary assets that meet specific criteria established by the OCC fiduciary activities regulation at 12 CFR 9.18. Each CIF is established under a “Plan” that details the terms under which the bank manages and administers the fund's assets. The bank acts as a fiduciary for the CIF and holds legal title to the fund's assets. Participants in a CIF are the beneficial owners of the fund's assets. Each participant owns an undivided interest in the aggregate assets of a CIF; a participant does not directly own any specific asset held by a CIF.
A fiduciary account's investment in a CIF is called a “participating interest.” Participating interests in a CIF are not insured by the Federal Deposit Insurance Corporation and are not subject to potential claims by a bank's creditors. In addition, a participating interest in a CIF cannot be pledged or otherwise encumbered in favor of a third party.
The general rule for valuation of a CIF's assets specifies that a CIF admitting a fiduciary account (that is, allowing the fiduciary account, in effect, to purchase its proportionate interest in the assets of the CIF) or withdrawing the fiduciary account (that is, allowing the fiduciary account, in effect, to redeem the value of its proportionate interest in the CIF) may only do so on the basis of a valuation of the CIF's assets, as of the admission or withdrawal date, based on the mark-to-market value of the CIF's
A STIF is a type of CIF that permits a bank to value the STIF's assets on an amortized cost basis, rather than at mark-to-market value, for purposes of admissions and withdrawals. This is an exception to the general rule of market valuation. In order to qualify for this exception under the OCC's current Part 9 fiduciary activities regulation, a STIF's Plan must require the bank to: (1) Maintain a dollar-weighted average portfolio maturity of 90 days or less; (2) accrue on a straight-line or amortized basis the difference between the cost and anticipated principal receipt on maturity; and (3) hold the fund's assets until maturity under usual circumstances.
The OCC's STIF Rule governs STIFs managed by national banks. In addition, regulations adopted by the Office of Thrift Supervision, now recodified as OCC rules pursuant to Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act,
This final rule enhances protections provided to STIF participants and reduces risks to banks that administer STIFs. The final rule does not affect the obligation that STIFs meet the CIF requirements described in 12 CFR Part 9, which allows national banks to maintain and invest fiduciary assets, consistent with applicable law.
In light of the issuance of this final rule, a bank administering a STIF must revise the written Plan required by 12 CFR 9.18(b)(1).
There are other types of funds that seek to maintain a stable NAV. The most significant of these from a financial market presence standpoint are “money market mutual funds” (MMMFs). These funds are organized as open-ended management investment companies and are regulated by the U.S. Securities and Exchange Commission (“SEC”) pursuant to the Investment Company Act of 1940, particularly pursuant to the provisions of SEC Rule 2a–7 thereunder (“Rule 2a–7”).
There are a number of important differences between MMMFs and STIFs; most significantly, MMMFs are open to retail investors, whereas, STIFs only are available to authorized fiduciary accounts. MMMFs may be offered to the investing public and have become a popular product with retail investors, corporate money managers, and institutional investors seeking returns equivalent to current short-term interest rates in exchange for high liquidity and the prospect of protection against the loss of principal. In contrast to the approximately $118 billion currently held in STIFs administered by national banks, MMMFs, as of July 2012, held approximately $2.5 trillion dollars of investor assets.
During the recent period of financial market stress, beginning in 2007 and stretching into 2009, certain types of short-term debt securities frequently held by MMMFs experienced unusually high volatility. Concerns by investors that their MMMFs could not maintain a stable NAV eventually led to investor redemptions out of those funds, and some funds needed to liquidate sizeable portions of their securities to meet investor redemption requests. The volume of redemption requests depressed market prices for short-term debt instruments, exacerbating the problem for all types of stable NAV funds.
The President's Working Group on Financial Markets (“PWG”),
The SEC subsequently adopted amendments to Rule 2a–7 to strengthen the resilience of MMMFs.
On April 9, 2012, the OCC published proposed amendments to its Part 9 STIF Rule
The comment period for the proposed rule ended on June 8, 2012. The OCC received a total of nine comments: Three from individuals, three from trade associations, two from non-bank financial services firms, and one from a national bank.
In general, commenters supported the proposed rule; however, two commenters asserted that the proposal should more closely follow the SEC's 2a–7 MMMF rule. The OCC's proposal, and the final rule issued today, differs from the SEC's 2a–7 MMMF rule, which reflects the differences between MMMFs and STIFs—MMMFs are a retail investment offering, while STIF participation is limited to eligible accounts under the OCC's fiduciary account regulation at 12 CFR Part 9 and the exemptions from the Investment Company Act of 1940 relied upon by banks organizing STIFs.
One commenter noted that a significant portion of STIF assets are managed by state chartered banks that are not required to comply with the OCC's STIF Rules and that implementation of the OCC's proposed changes may thus place national bank STIF administrators at a competitive disadvantage to state-regulated STIFs and their bank administrators. The OCC acknowledges this concern, but notes that some states' laws may require state banks administering certain comparable funds to comply with the standards the OCC applies to STIFs. In any case, the OCC has concluded that, on balance, the benefits of the final rule issued today that enhance protections provided to STIF participants and reduce risks to banks that administer STIFs outweigh the competitive issue raised by the commenter.
Additional comments are addressed in the Section-by-Section Analysis section of this
Some commenters requested that the final rule have a compliance date in the range of 12 to 16 months after the date of issuance. The final rule's effective date, which will be same date upon which the OCC will expect compliance with the rule, is July 1, 2013. This effective date will provide affected banks with sufficient time to make the systems, process, and investment changes necessary to implement the rule. The OCC believes that the implementation period is adequate given that most affected institutions already are complying with many aspects of the final rule.
STIFs typically maintain stable NAVs in order to meet the expectations of the fund's bank managers and participating fiduciary accounts.
The current STIF Rule requires the bank managing a STIF
The final rule amends the “dollar-weighted average portfolio maturity”
Having a portfolio weighted towards securities with longer maturities poses greater risks to participating accounts in a STIF. For example, a longer dollar-weighted average maturity period increases a STIF's exposure to interest rate risk. Additionally, longer maturity periods amplify the effect of widening
STIFs with a shorter portfolio maturity period would be better able to withstand increases in interest rates and credit spreads without material deviation from amortized cost. Furthermore, in the event distress in the short-term instrument market triggers increasing rates of withdrawals from STIFs, the STIFs would be better positioned to withstand such withdrawals as a greater portion of their portfolios mature and return principal on a daily or weekly basis and would have greater ability to liquidate a portion of their portfolio at a reasonable price.
The OCC received one comment addressing the proposed change to the dollar-weighted average portfolio maturity from 90 to 60 days. The commenter asserted that a 60-day dollar-weighted average portfolio maturity would affect STIFs' ability to manage portfolios in a declining interest rate environment and increase demand for securities with shorter interest rate durations. The commenter also stated that this aspect of the proposal would limit a bank's ability to match the expected interest rate horizon of assets to the interest rate and duration of liabilities.
The OCC recognizes the concerns expressed by the commenter; however, as previously discussed, STIFs with a 60-day dollar-weighted average portfolio maturity (1) will better withstand increases in interest rates and credit spreads without material deviation from amortized cost and (2) be better positioned to withstand withdrawals during distress in the short-term instrument market. For these reasons, the 60-day dollar-weighted average portfolio maturity is adopted as proposed without change.
The final rule, consistent with the proposal, adds a new maturity requirement for STIFs, which limits the dollar-weighted average portfolio life maturity to 120 days or less. The dollar-weighted average portfolio life maturity is measured without regard to a security's interest rate reset dates and, thus, limits the extent to which a STIF can invest in longer-term securities that may expose it to increased liquidity and credit risk.
The dollar-weighted average portfolio maturity measurement in the current STIF Rule does not do as much as its name might suggest to restrict the introduction of certain types of longer-term instruments into a STIF portfolio. For example, floating rate instruments are generally treated according to their next reset date, while they may still be instruments of a longer contractual term that expose the STIF to higher liquidity and credit risks than an instrument of shorter maturity. For this reason, the final rule imposes a new dollar-weighted average portfolio life maturity limitation on the structure of a STIF, to capture certain credit and liquidity risks not encompassed by the dollar-weighted average portfolio maturity restriction. The rule requires that STIFs maintain a dollar-weighted average portfolio life maturity of 120 days or less, which provides a reasonable balance between strengthening the resilience of STIFs to credit and liquidity events while not unduly restricting a bank's ability to invest the STIF's fiduciary assets in a diversified portfolio of short-term, high quality debt securities.
One commenter argued that the proposed 120-day dollar-weighted average portfolio life maturity standard would restrict the ability of STIFs to acquire high credit quality debt securities with legal final maturities longer than one year and would restrict STIFs' ability to diversify fund holdings among multiple types of high quality securities and issuers. To remedy these issues, the commenter suggested that a 180-day dollar-weighted average portfolio life maturity standard would be more appropriate.
The OCC believes that the short-term securities markets are sufficiently diverse in terms of high quality securities and issuers that implementation of a 120-day dollar-weighted average portfolio life maturity standard will not be materially detrimental to national banks and their sponsored STIFs. Furthermore, the OCC believes that a 120-day dollar-weighted average portfolio life maturity standard strengthens the resilience of STIFs to credit and liquidity risks, particularly in volatile markets, which is a systemic benefit that outweighs the particular concerns raised by the commenter. For these reasons, the OCC adopts the 120-day dollar-weighted average portfolio life maturity standard as proposed without change.
In determining the dollar-weighted average portfolio maturity of STIFs under the current rule, national banks generally apply the same methodology as required by the SEC for MMMFs pursuant to Rule 2a–7. Dollar-weighted average maturity under Rule 2a–7 is calculated, generally, by treating each security's maturity as the period remaining until the date on which, in accordance with the terms of the security, the principal amount must be unconditionally paid or, in the case of a security called for redemption, the date on which the redemption payment must be made. Rule 2a–7 also provides eight exceptions to this general rule. For example, for certain types of variable-rate securities, the date of maturity may be the earlier of the date of the next interest rate reset or the period remaining until the principal can be recovered through demand. For repurchase agreements, the maturity is the date on which the repurchase is scheduled to occur, unless the repurchase agreement is subject to demand for repurchase, in which case the maturity is the notice period applicable to demand.
Two commenters requested that the OCC not include, or “grandfather”, assets held by STIFs prior to the publication or effective date of the final rule for purposes of calculating the proposed 60-day dollar-weighted average portfolio maturity and 120-day dollar-weighted average portfolio life maturity standards. These commenters suggested that, if the rule did not
The final rule does not include grandfathering provisions. OCC believes that it is possible that a limited number of STIFs may be required to sell certain portfolio holdings in order to comply with the revised standards, which could, potentially, decrease the book value of a STIF. However, allowing these assets to remain in a limited number of STIFs would continue to expose participants in those STIFs to the heightened liquidity and credit risks of these assets—risks to which investors in other STIFs will not be exposed. In addition, the final rule does not become effective until July 1, 2013, affording affected banks an extended period during which they can determine the most appropriate strategy for disposition of these assets.
To ensure that banks managing STIFs observe standards designed to limit the amount of credit and liquidity risk to which participating accounts in STIFs are exposed, the OCC proposed to require the Plan to include a provision for the adoption of portfolio and issuer qualitative standards and concentration restrictions. No comment was received on this proposed Plan provision and, thus, it is adopted as proposed without change. The OCC expects bank fiduciaries to identify, monitor, and manage issuer concentrations and lower quality investment concentrations, and to implement procedures to perform appropriate due diligence on all concentration exposures, as part of the bank's risk management policies and procedures for each STIF. In addition to standards imposed by applicable law, the portfolio and issuer qualitative standards and concentration restrictions should take into consideration market events and any deterioration in an issuer's financial condition.
Many banks process STIF withdrawal requests within a short time frame, often on the same day that the withdrawal request is received, which necessitates sufficient liquidity to meet such requests. By holding illiquid securities, a STIF exposes itself to the risk that it will be unable to satisfy withdrawal requests promptly without selling illiquid securities at a loss that, in turn, could impair its ability to maintain a stable NAV. Moreover, illiquid securities are generally subject to greater price volatility, exposing the STIF to greater risk that its mark-to-market value will deviate from its amortized cost value. To address this concern, the final rule, consistent with the proposal, requires adoption of liquidity standards that include provisions to address contingency funding needs.
One commenter requested that the OCC clarify that the phrase “contingency funding needs” in the provision refers to contingency funding of the assets of a STIF, rather than a requirement that the STIF obtain a line of credit or similar redemption funding arrangement with a lending institution. It is the OCC's view that the contingency funding aspect of this requirement does not require a STIF to obtain a letter of credit or similar arrangement with another party. However, liquidity standards should include provisions to address contingency funding needs, delineating policies to manage a range of stress environments, establishing clear lines of responsibility, and articulating clear implementation and escalation procedures. An objective of robust liquidity standards should be to ensure that the STIF's sources of liquidity are sufficient to fund expected operating requirements under a reasonable range of contingent events and scenarios. A STIF Plan's liquidity standards should identify alternative contingent liquidity resources that can be employed under adverse liquidity circumstances. The liquidity standards should be commensurate with a STIF's complexity, risk profile, and scope of operations. The liquidity funding needs standards should be regularly tested and updated to ensure they are operationally sound and, as macroeconomic and institution-specific conditions change, the liquidity standards of a STIF's Plan should be revised to reflect these changes.
Another commenter suggested that the final rule should adopt the SEC's Rule 2a–7 prescriptive liquidity standards applicable to MMMFs. Those standards (1) require a MMMF to hold securities that are sufficiently liquid to meet reasonably foreseeable shareholder redemptions and any commitments the MMMF has made to shareholders; (2) prohibit the acquisition of an illiquid security if the MMMF would have invested more than 5% of its total assets in illiquid securities; (3) require the MMMF to maintain a minimum daily liquidity of 10% or more of total assets; and (4) require the MMMF to maintain a weekly minimum liquidity of 30% or more of total assets.
For these reasons, the final rule adopts the STIF Plan liquidity standards provision as proposed without change.
Consistent with the proposal, the final rule requires a bank managing a STIF to adopt shadow pricing procedures.
One commenter requested that the OCC confirm that a bank administering a STIF is permitted to decide the most appropriate actions to protect participating accounts from dilution or other unfair results if the difference between mark-to-market and amortized cost per participating interest exceeds $0.005. The OCC notes that the shadow pricing requirement does not impose any limits or requirements on actions a bank administering a STIF must take to reduce dilutions of participating interests or other unfair results to participating accounts. However, any such actions taken must not impair the safety and soundness of the bank.
Another commenter advocated that a difference of $0.005 between mark-to-market and amortized cost per participating interest is significant in a low interest rate environment and, therefore, a lower threshold of difference should apply. The OCC notes that, by the same logic, a higher threshold of deviation from $1.00 might be appropriate for higher interest rate environments. However, the OCC believes that the $0.005 trigger is widely recognized as a threshold of significance in this arena, and will function effectively as a risk management benchmark, the meaning of which will be understood by banks and STIF participants alike.
For these reasons, the proposed STIF shadow pricing procedures are adopted as final without change.
Consistent with the proposal, the final rule requires a bank managing a STIF to adopt procedures for stress testing the fund's ability to maintain a stable NAV for participating interests. The final rule requires the stress tests be conducted at such intervals as an independent risk manager or a committee responsible for the STIF's oversight determines to be appropriate and reasonable in light of current market conditions, but in no case shall the interval be longer than a calendar month-end basis. The independent risk manager or committee members must be independent from the STIF's investment management. The stress testing is to be based upon scenarios (specified by the bank) that include, but are not limited to, a change in short-term interest rates; an increase in participating account withdrawals; a downgrade of or default on portfolio securities; and the widening or narrowing of spreads between yields on an appropriate benchmark the fund has selected for overnight interest rates and commercial paper and other types of securities held by the fund.
The stress testing requirement provides a bank with flexibility to specify the scenarios or assumptions on which the stress tests are based, as appropriate to the risk exposures of each STIF. Banks managing STIFs should, for example, consider procedures that require the fund to test for the concurrence of multiple hypothetical events,
The final rule also requires a stress test report be provided to the independent risk manager or the committee responsible for the STIF's oversight. The report must include: (1) The date(s) on which the testing was performed; (2) the magnitude of each hypothetical event that would cause the difference between the STIF's mark-to-market NAV calculated using available market quotations (or appropriate substitutes which reflect current market conditions) and its NAV per participating interest calculated using amortized cost to exceed $0.005; and (3) an assessment by the bank of the STIF's ability to withstand the events (and concurrent occurrences of those events) that are reasonably likely to occur within the following year.
In addition, the final rule requires that adverse stress testing results be reported to the bank's senior risk management that is independent from the STIF's investment management.
Two commenters asserted that the stress testing methodology should be left to the discretion of a bank. The requirement that the Plan adopt procedures for stress testing a STIF's ability to maintain a stable NAV per participating interest does not specify any stress testing methodology. However, as proposed, the stress testing provision requires that the stress testing be based upon hypothetical events that include, but are not limited to, a change in short-term interest rates, an increase in participant account withdrawals, a downgrade of or default on portfolio securities, and the widening or narrowing of spreads between yields on an appropriate benchmark the STIF has selected for overnight interest rates and commercial paper and other types of securities held by the STIF.
These two commenters also suggested that the frequency of stress testing should be left to the discretion of a bank. The rule requires stress testing at least on a calendar month-end basis and at such frequencies as an independent risk manager or a committee responsible for a STIF's oversight that consists of members independent from the STIF's investment management determines appropriate and reasonable in light of current market conditions. Thus, the monthly stress testing requirement is a floor; independent risk managers or an oversight committee, consisting of independent members as described in the proposal, have the discretion to perform more frequent stress testing. The OCC believes that monthly stress testing is an appropriate, minimum requirement to enhance a bank's sound management of a STIF.
Finally, one commenter requested that the OCC confirm that the term “independent risk manager” used in this provision may include a person, group, or function designated as an independent risk manager, but does not need to be a third party service provider. An “independent risk manager” is not required to be a third party service provider. However, as discussed previously, an independent risk manager (
These stress testing procedures will provide banks with a better understanding of the risks to which STIFs are exposed and will give banks additional information that can be used for managing those risks. For these reasons, the proposed stress testing requirement is adopted as final without change.
Consistent with the proposal, the final rule requires banks managing STIFs to disclose information about fund level portfolio holdings to STIF participants and to the OCC within five business days after each calendar month-end. Specifically, the bank is required to disclose the STIF's total assets under management (securities and other assets including cash, minus liabilities); the fund's mark-to-market and amortized cost NAVs, both with and without capital support agreements; the dollar-weighted average portfolio maturity; and dollar-weighted average portfolio life maturity as of the last business day of the prior calendar month. The current STIF Rule does not contain a similar disclosure requirement.
Also, for each security held by the STIF, as of the last business day of the prior calendar month, the bank is required to disclose to STIF participants and to the OCC within five business days after each calendar month-end at a security level: (1) The name of the issuer; (2) the category of investment; (3) the Committee on Uniform Securities Identification Procedures (CUSIP) number or other standard identifier; (4) the principal amount; (5) the maturity date for purposes of calculating dollar-weighted average portfolio maturity; (6) the final legal maturity date (taking into account any maturity date extensions that may be effected at the option of the issuer) if different from the maturity date for purposes of calculating dollar-weighted average portfolio maturity; (7) the coupon or yield; and (8) the amortized cost value.
Two commenters addressed the proposal's requirement that banks managing STIFs disclose fund and security level information to STIF participants and to the OCC within five business days after each calendar month-end. One commenter suggested that banks make the disclosures 30 days after each calendar month-end; the other commenter suggested 60 days after a calendar month-end. A reason one commenter cited for the 60-day disclosure delay is to be consistent with the SEC's MMMF rule disclosures, which were adopted in order to address concerns about investor confusion and alarm that could result in redemption requests that could increase deviations in a MMMF's price. While this concern may be applicable to MMMFs, which are open to retail investors, STIFs are only available to authorized fiduciary accounts. Fiduciary account participants are less likely than retail investors to become confused and alarmed by fund and security level disclosures five days after each month-end.
One commenter raised concerns related to compiling and filing accurate fund and security level disclosures within five days after calendar month-end. However, the OCC believes the information required to be disclosed is factual, simple, and brief, and, furthermore, is easily susceptible to electronic tracking and report generation so that a five-day disclosure requirement will not introduce unreasonable burden or foster an environment prone to error.
Two commenters suggested that the fund and security level disclosures should be made electronically to STIF participants and the OCC. The proposed regulation did not specify the form,
Finally, one commenter requested that the final rule use alternative descriptive language, rather than the term “STIF participant” in this provision. The OCC believes that the term “STIF participant” is a widely understood term of art that banks use in the administration of STIFs. Furthermore, the OCC received no other requests from commenters seeking clarification of the term. Thus, the proposed use of the term “STIF participant” in § 9.18(b)(4)(iii)(I) is adopted in the final rule without change.
For the reasons discussed, the OCC adopts the fund and security level disclosures with one change. As noted, in order to preserve the flexibility for banks to make electronic disclosures to the OCC, the final rule removes the OCC's street mailing address from § 9.18(b)(4)(iii)(I).
Consistent with the proposal, the final rule requires a bank that manages a STIF to notify the OCC prior to or within one business day after certain events. Those events are: (1) Any difference exceeding $0.0025 between the NAV and the mark-to-market value of a STIF participating interest based on current market factors; (2) when a STIF has re-priced its NAV below $0.995 per participating interest; (3) any withdrawal distribution-in-kind of the STIF's participating interests or segregation of portfolio participants; (4) any delays or suspensions in honoring STIF participating interest withdrawal requests; (5) any decision to formally approve the liquidation, segregation of assets or portfolios, or some other liquidation of the STIF; and (6) when a national bank, its affiliate, or any other entity provides a STIF financial support, including a cash infusion, a credit extension, a purchase of a defaulted or illiquid asset, or any other form of financial support in order to maintain a stable NAV per participating interest.
To comply with this requirement, a bank will have to calculate the mark-to-market value of a STIF participating interest on a daily basis.
One commenter suggested that the rule permit at least five business days, rather than one business day, to notify the OCC of liquidity or valuation stress, in order to provide banks with sufficient time to gather facts, determine a course of action, and prepare a complete and clear notification. As previously discussed, banks' proposed notification prior to or within one business day after limited specific events will permit the OCC to more effectively supervise STIFs that are experiencing liquidity or valuation stress. As has been observed from the recent period of financial market turmoil, liquidity stress events occur within very short time frames thereby making a five business day or more lag for banks to provide the OCC with notification contrary to the agency's obligation to supervise the safety and soundness of banks that administer STIFs.
One commenter also requested clarification that the notification required by § 9.18(b)(4)(iii)(J) may be made to the OCC electronically. Consistent with the prior discussion of § 9.18(b)(4)(iii)(I), the final rule removes the OCC's street mailing address from proposed § 9.18(b)(4)(iii)(J) and the OCC will provide guidance to banks describing the process for making electronic notifications to the agency at least 90 days prior to the effective date of the final rule.
As discussed previously, the OCC included as part of the reportable events under the proposed rule any withdrawal distribution-in-kind of the STIF's participating interests or segregation of portfolio participants. One commenter asserted that in-kind distributions are not necessarily an indication that a STIF is experiencing liquidity or valuation stress. The commenter suggested revising § 9.18(b)(4)(iii)(J)(
For the reasons discussed, the requirement that a bank administering a STIF notify the OCC prior to or within one business day after certain specified events is adopted with one minor
The OCC is amending the current rule to require banks managing a STIF to adopt procedures that, in the event a STIF has re-priced its NAV below $0.995 per participating interest, the bank managing the STIF shall calculate, admit, and withdraw the STIF's participating interests at a price based on the mark-to-market NAV. Currently, the rule creates an incentive for withdrawal of participating interests if the mark-to-market NAV falls below the stable NAV because the earlier withdrawals are more likely to receive the full stable NAV payment. The OCC proposed this requirement in order to remove this incentive, as once the NAV is priced below $0.995, all withdrawals of participating interests will receive the mark-to-market NAV instead of the stable NAV.
One commenter highlighted language in the OCC proposal requiring banks to “calculate, redeem, and sell” STIF participating interests at mark-to-market NAV once participating interests in the STIF have been re-priced below $0.995. This commenter requested clarification whether the OCC intends to require the bank to begin liquidation of the STIF once it has re-priced its NAV below $0.995 per participating interest. The OCC did not intend this language to require a bank to begin liquidation of a STIF. To provide clarification, § 9.18(b)(4)(iii)(K) has been revised in the final rule to require banks managing a STIF to adopt procedures that, in the event a STIF has re-priced its NAV below $0.995 per participating interest, the bank managing the STIF shall calculate,
The final rule, consistent with the proposal, requires a bank managing a STIF to adopt procedures for suspending redemptions and initiating liquidation of a STIF as a result of redemptions. The OCC's intent in proposing this requirement was to reduce the vulnerability of participating accounts to the harmful effects of extraordinary levels of withdrawals, which can be accomplished to some degree by suspending withdrawals. These suspensions only will be permitted in limited circumstances when, as a result of redemption, the bank has: (1) Determined that the extent of the difference between the STIF's amortized cost per participating interest and its current mark-to-market NAV per participating interest may result in material dilution of participating interests or other unfair results to participating accounts; (2) formally approved the liquidation of the STIF; and (3) facilitated the fair and orderly liquidation of the STIF to the benefit of all STIF participants.
The OCC understands that suspending withdrawals may impose hardships on fiduciary accounts for which the ability to redeem participations is an important consideration. Accordingly, the requirement is limited to permitting suspension in extraordinary circumstances when there is significant risk of extraordinary withdrawal activity to the detriment of other participating accounts.
Similar to the discussion in § 9.18(b)(4)(iii)(I), one commenter requested that § 9.18(b)(4)(iii)(L) use the phrase “accounts invested in a STIF” rather than the term “STIF participant”. As discussed previously, the OCC believes that the term “STIF participant” is a widely understood term of art that banks use in the administration of STIFs. Additionally, the OCC received no other requests from commenters seeking clarification of the term. Thus, proposed § 9.18(b)(4)(iii)(L) is adopted as final rule without change.
In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. In conjunction with the notice of proposed rulemaking, the OCC submitted the information collection requirements contained therein to OMB for review. In accordance with 5 CFR 1320, OMB filed a comment on the PRA submission instructing the OCC “* * * to examine public comment in response to the NPRM and include in the supporting statement of the next information collection request—to be submitted to OMB at the final rule stage—a description of how the OCC has responded to any public comments on the PRA submission, including comments on maximizing the practical utility of the collection and minimizing the burden.” The OCC received no comments on the PRA submission and is resubmitting it with the issuance of this final rule, as instructed by OMB. The OCC has resubmitted the information collection requirements in the final rule to OMB for review and approval under 44 U.S.C. 3506 and 5 CFR part 1320. The information collection requirements are found in §§ 9.18(b)(iii)(E)–(L) of the final rule.
No comments concerning PRA were received in response to the notice of proposed rulemaking. Therefore, the hourly burden estimates for respondents noted in the proposed rule have not changed. The OCC has an ongoing interest in your comments.
Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the agency's functions, including whether the information has practical utility;
(b) The accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments should be directed to: Communications Division, Office of the Comptroller of the Currency, Mailstop 2–3, Attention: 1557–NEW, 250 E Street SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874–5274 or by electronic mail to
Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557–NEW, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503, or by fax to (202) 395–6974.
The Regulatory Flexibility Act (RFA) generally requires an agency that is issuing a final rule to prepare and make available a final regulatory flexibility analysis that describes the impact of the final rule on small entities. 5 U.S.C. 604. However, the RFA provides that an agency is not required to prepare and make available a final regulatory flexibility analysis if the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the
This final rule will not have a significant economic impact on any small national banks or Federal branches and agencies or trust companies, as defined by the RFA. Two small national banks, which are not a substantial number of the 585 small national banks, and no FSAs or Federal branches and agencies reported management of STIFs on their required regulatory reports as of June 30, 2012. Therefore, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532), requires the OCC to prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation). The OCC has determined that this final rule will not result in expenditures by state, local, and tribal governments, or the private sector, of $100 million or more in any one year. Accordingly, the OCC has not prepared a budgetary impact statement.
Estates, Investments, National banks, Reporting and recordkeeping requirements, Trusts and trustees.
For the reasons set forth in the preamble, chapter I of title 12 of the Code of Federal Regulations is amended as follows:
12 U.S.C. 24 (Seventh), 92a, and 93a; 12 U.S.C. 78q, 78q–1, and 78w.
(b) * * *
(4) * * *
(ii)
(iii)
(A) Operate with a stable net asset value of $1.00 per participating interest as a primary fund objective;
(B) Maintain a dollar-weighted average portfolio maturity of 60 days or less and a dollar-weighted average portfolio life maturity of 120 days or less as determined in the same manner as is required by the Securities and Exchange Commission pursuant to Rule 2a–7 for money market mutual funds (17 CFR 270.2a–7);
(C) Accrue on a straight-line or amortized basis the difference between the cost and anticipated principal receipt on maturity;
(D) Hold the STIF's assets until maturity under usual circumstances;
(E) Adopt portfolio and issuer qualitative standards and concentration restrictions;
(F) Adopt liquidity standards that include provisions to address contingency funding needs;
(G) Adopt shadow pricing procedures that:
(
(
(H) Adopt procedures for stress testing the STIF's ability to maintain a stable net asset value per participating interest that shall provide for:
(
(
(
(
(I) Adopt procedures that require a bank to disclose to STIF participants and to the OCC's Asset Management Group, Credit & Market Risk Division, within five business days after each calendar month-end, the fund's total assets under management (securities and other assets including cash, minus liabilities); the fund's mark-to-market and amortized cost net asset values both with and without capital support agreements; the dollar-weighted average portfolio maturity; the dollar-weighted average portfolio life maturity of the STIF as of the last business day of the prior calendar month; and for each security held by the STIF as of the last business day of the prior calendar month:
(
(
(
(
(
(
(
(
(J) Adopt procedures that require a bank that administers a STIF to notify the OCC's Asset Management Group, Credit & Market Risk Division, prior to or within one business day thereafter of the following:
(
(
(
(
(
(
(K) Adopt procedures that in the event a STIF has re-priced its net asset value below $0.995 per participating interest, the bank administering the STIF shall calculate, admit, and withdraw the STIF's participating interests at a price based on the mark-to-market net asset value; and
(L) Adopt procedures that, in the event a bank suspends or limits withdrawals and initiates liquidation of the STIF as a result of redemptions, require the bank to:
(
(
(
Office of the Comptroller of the Currency (“OCC”), Treasury.
Final rule.
This final rule implements section 165(i) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) which requires certain companies to conduct annual stress tests pursuant to regulations prescribed by their respective primary financial regulatory agencies. Specifically, this final rule requires national banks and Federal savings associations with total consolidated assets over $10 billion (defined as “covered institutions”) to conduct an annual stress test as prescribed by this rule.
Under the final rule covered institutions are divided into two categories: covered institutions with total consolidated assets between $10 and $50 billion, and covered institutions with total consolidated assets over $50 billion. Based on these categories, covered institutions are subject to different stress test requirements and deadlines for reporting and disclosures. A key difference between these categories is that a national bank or Federal savings association that qualifies as an over $50 billion covered institution as of October 9, 2012 must conduct the annual stress test under this final rule beginning this year; other covered institutions that qualify as $10 to $50 billion covered institutions are not subject to the stress test requirements under this final rule until 2013.
This rule is effective on October 9, 2012.
Darrin Benhart, Deputy Comptroller, Credit and Market Risk, (202) 874–1711; Robert Scavotto, Lead International Expert, International Analysis and Banking Condition, (202) 874–4943; William Russell, National Bank Examiner, (202) 874–5224; Akhtarur Siddique, Deputy Director, Enterprise Risk Analysis Division, (202) 874–4665; Ron Shimabukuro, Senior Counsel, or Alexandra Arney, Attorney, Legislative and Regulatory Activities Division, (202) 874–5090, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219.
Section 165(i) of the Dodd-Frank Act
In addition to the company-run stress tests required under section 165(i)(2), section 165(i)(1) requires the Board to conduct annual analyses of nonbank financial companies supervised by the Board and bank holding companies with total consolidated assets equal to or greater than $50 billion to determine whether such companies have the capital, on a total consolidated basis, necessary to absorb losses as a result of adverse economic conditions.
The OCC published a notice of proposed rulemaking in the
As noted, section 165(i)(2) of the Dodd-Frank Act requires the primary financial regulators to issue regulations that include requirements defining “stress test,” establishing methodologies for the conduct of company-run stress tests under at least three different sets of conditions, establishing the form and content of the institution's report, and compelling the institution to publish a summary of the results. One commenter raised concerns that the OCC would impose unnecessary, multiple stress testing requirements and subject institutions to uncoordinated testing parameters, data requests, and disclosure formats. Other commenters urged consistency and comparability across the agencies' rules and reconciliation of inconsistencies among the rules of the agencies.
The OCC has worked to minimize any potential duplication related to the annual stress test requirements. In particular, the OCC worked closely with the other agencies to make consistent and comparable the rules' standards in the areas of scope of application, scenarios, data collection and reporting forms. Each of these areas is discussed in further detail below.
In the proposed rule, the OCC defined a “covered institution” as a national bank or Federal savings association with average consolidated assets that exceed $10 billion, with implementation of the stress testing requirements to begin in late 2012. Several commenters suggested that the OCC delay implementation of the rule, particularly for institutions that have not been previously subject to other stress testing requirements such as the Board's Comprehensive Capital Analysis and Review (“CCAR”) stress tests. One commenter suggested that the OCC introduce stress test requirements on a rolling basis according to asset size and begin with the largest institutions. Only one commenter indicated that an immediate effective date would provide sufficient time for an institution to conduct its first stress test.
The OCC recognizes that institutions are at different stages in developing their stress testing frameworks and that the agencies only recently issued stress testing guidance.
Most national banks with consolidated assets of $50 billion or more have been subject to previous stress testing, including the 2009 Supervisory Capital Assessment Program (“SCAP”) and the Board's CCAR stress tests, and consequently, have in place a framework necessary to conduct the stress tests required by this rule. Furthermore, given the size and importance of these covered institutions to the safety and soundness of the United States banking system, the OCC believes it is appropriate for these covered institutions to begin conducting company-run stress tests as soon as possible. Consequently, most national banks and Federal savings associations with consolidated total assets equal to or exceeding $50 billion will be required to conduct their first annual stress tests under this final rule in the fall of 2012.
The OCC notes, however, that some national banks and Federal savings associations with assets of $50 billion or more may not be able or ready to conduct the annual stress test this year in a manner that would yield meaningful results. For example, covered institutions that were not subject to SCAP and CCAR may need more time to develop and implement a robust stress testing framework. Therefore the OCC is reserving authority in the rule to permit these national banks and Federal savings associations to delay the application of the requirements under this final rule on a case-by-case basis, subject to such conditions as the OCC may deem appropriate.
One commenter recommended expanding the scope of the rule to include national banks and Federal savings associations with consolidated assets of less than $10 billion. The OCC believes that stress testing is a good risk management tool that national banks and Federal savings associations of all sizes should consider using in their risk management practices. Moreover, there may be certain situations where, as a supervisory matter, the OCC believes it
In addition, the OCC reserves the right to exempt an otherwise covered institution from certain stress test requirements under this final rule to the degree consistent with the requirements of the Dodd-Frank Act.
Several commenters urged the agencies to coordinate regarding the scenarios required to be used by bank holding companies, savings and loan holding companies, banks, and savings associations in conducting the stress tests. The OCC, the Board and the FDIC expect to consult closely to provide common scenarios for use at both the depository institution and holding company levels. As part of the annual scenario development process, the OCC expects to update, make additions to, or otherwise modify the scenarios as appropriate. This process will culminate with the distribution of the scenarios to all covered institutions no later than November 15 of each year. The OCC originally proposed an October 15 date for distribution of the scenarios but believes that a November 15 date will better align the development and issuance of the scenarios with the other agencies.
Several of the commenters also suggested a review process relating to scenario development. The OCC believes that a lengthy annual review process for scenarios is impractical if scenarios are to be finalized and issued without becoming outdated due to economic and financial developments. However, the OCC believes that it is important to have a consistent and transparent framework to support scenario design. Consequently, the OCC expects to consult with the Board and the FDIC as well as public and private sector experts to obtain views on salient risks and to obtain suggestions for the behavior of key economic variables under the stress conditions reflected in the scenarios. The OCC expects to publish for one-time notice and comment a guidance document setting out the annual procedures to be used by the OCC in development of the scenarios.
A question posed in the notice of proposed rulemaking regarding whether to permit covered institutions to develop their own scenarios generated comments on each side of the issue. After reviewing the comments, the OCC believes that the most compelling argument is that all covered institutions should use the same set of scenarios so that the OCC can better compare results. Therefore, the OCC intends to provide one set of scenarios for use by all covered institutions.
However, the OCC believes there may be circumstances that would warrant the use of different or additional scenarios. For this reason, the OCC reserves the authority to require a covered institution to use different or additional scenarios as the OCC may deem appropriate. For example, a covered institution may conduct business activities or have risk exposures for which different or additional scenarios might better meet the objectives of this rule. Alternatively, at a more systemic level, although the agencies expect to consult closely on scenario development, the agencies may have different views of the risks that should be reflected in the stress scenarios that covered institutions use for the annual stress test. While recognizing this possibility, the OCC anticipates making every effort to avoid differences in the scenarios required by each agency and to distribute the same scenarios to all covered institutions.
One commenter noted that the OCC's proposed rule defined “stress test” as a process to assess the impact of scenarios on capital, whereas the Board and FDIC definitions also referred to impact on consolidated earnings and losses. The OCC has modified its definition in the final rule to include impact on consolidated earnings and losses to be consistent with the other agencies' definitions. In addition, the OCC proposal defined a “stress test” to require taking into account several factors including “material” risks, whereas the Board and FDIC proposals did not expressly require the risk to be “material.” The OCC has deleted the term “material” from its definition. Thus, under the final rule, a covered institution must be able to assess the potential impact of scenarios on the consolidated earnings, losses, and capital of a covered institution over the planning horizon, taking into account the covered institution's current condition, risks, exposures, strategies, and activities.
The final rule states that covered institutions must consider the results of stress tests conducted under the rule in the normal course of business, including, but not limited to, the covered institution's capital planning, assessment of capital adequacy, and risk management practices. The OCC believes, as discussed in interagency guidance on stress testing published in May 2012, that stress tests are an important tool for a variety of decisions made by covered institutions.
One commenter urged the agencies to develop common reporting requirements. The OCC recognizes that many covered institutions with consolidated total assets of $50 billion or more have been subject to stress testing requirements under the Board's CCAR. The OCC also recognizes that these institutions' stress tests will be applied to more complex portfolios and therefore warrant a broader set of reports to capture adequately the results of the company-run stress tests. These reports will necessarily require more detail than would be appropriate for smaller, less complex institutions. Therefore, in response to comments, the OCC has decided to specify separate reporting templates for covered institutions with total consolidated assets between $10 and $50 billion and for covered institutions with total consolidated assets of $50 billion or more. The OCC published for notice and comment specific annual stress test reporting requirements for over $50 billion covered institutions in a separate final information collection under the Paperwork Reduction Act (44 U.S.C. 3501–3521).
The OCC notes, however, as discussed in the Paperwork Reduction Act notice for the reporting templates for the over $50 billion covered institutions, that the OCC will require covered institutions to submit supporting documentation that: (i) clearly describes the methodology used to produce the stress test projections; (ii) explains how the macroeconomic factors were translated into a covered institution's projections; and (iii) explains the technical details of any underlying statistical methods used. Where company-specific assumptions are made that differ from the broad macroeconomic assumptions incorporated in stress scenarios provided by the OCC, the documentation must also describe such assumptions and how those assumptions relate to reported projections.
One commenter suggested a planning horizon of two years with financial projections for each year rather than each quarter. However, the OCC believes that quarterly projections provide important supervisory information for the evaluation of the covered institutions' stress testing models and underlying assumptions over the course of the scenario. Some commenters suggested that the period of time between the distribution of scenarios by the OCC and the required reporting date was too short. The OCC plans to provide the annual stress test scenarios to covered institutions approximately seven weeks prior to the date by which an over $50 billion covered institution must report the results of its annual stress test. The OCC believes, based on its supervisory experience with over $50 billion covered institutions, that this should provide adequate time for these institutions to carry out the required stress tests. For the $10 to $50 billion covered institutions, the final rule extends the reporting date to March 31. The OCC believes this later reporting date should provide adequate time for the $10 to $50 billion covered institutions to conduct stress tests and report the results.
Several commenters expressed concern with disclosing baseline forecasts because these forecasts may be interpreted as earnings guidance. The OCC agrees with this concern and has revised the final rule to require the disclosure of losses only for the severely adverse scenario.
Several commenters noted that an immediate effective date for all institutions with consolidated assets over $10 billion could impose a significant burden on institutions that had not been subject to disclosure requirements such as those in CCAR. In light of these concerns, the OCC is implementing a one-year delay for application of the annual stress test requirement to covered institutions with consolidated assets between $10 billion and $50 billion, and a two-year delay of the disclosure requirement for those covered institutions. Therefore, these institutions would conduct the stress tests required under this rule for the first time in late 2013; the first disclosure of a summary of stress test results would occur in 2015, based on the results of the 2014 stress tests. National banks and Federal savings associations with consolidated assets of $50 billion or more that are subject to this final rule as of the effective date of this final rule must conduct their first stress test this year, with disclosure required in 2013. However, the OCC retains discretion to delay or otherwise modify the application of the disclosure requirements where the covered institution lacks the ability to conduct stress tests that provide meaningful and useful results.
This final rule implements the company-conducted stress test requirements for national banks and Federal savings associations as required by section 165(i)(2). Under this final rule, a national bank or a Federal savings association with total consolidated assets of more than $10 billion, defined as a “covered institution,” would be required to conduct an annual stress test as prescribed by this final rule. The OCC is delaying the application of the annual stress test requirements to national banks and Federal savings associations with total consolidated assets between $10 billion and $50 billion for one year.
The OCC developed this rule in coordination with the Board and the Federal Insurance Office, as required by section 165(i)(2)(C). The Board and FDIC will issue separate final rules with respect to their supervised entities. For purposes of this rule, “stress test” is defined as a process to assess the potential impact of hypothetical economic conditions (“scenarios”) on the consolidated earnings, losses, and capital of a covered institution over a set period (the “planning horizon”), taking into account the current condition of the covered institution including its risks, exposures, strategies, and activities.
The OCC views the stress tests conducted by covered institutions under the final rule as providing forward-looking information to supervisors to assist in their overall assessments of a covered institution's capital adequacy and to aid in identifying downside risks and the potential impact of adverse outcomes on the covered institution's capital adequacy. In addition, the OCC may use stress tests to determine whether additional analytical techniques and exercises are appropriate for a covered institution to employ in identifying, measuring, and monitoring risks to the financial soundness of the covered institution, and may require a covered institution to implement such techniques and exercises in conducting its stress tests. Further, these stress tests are expected to support ongoing improvement in a covered institution's stress testing practices with respect to its internal assessments of capital adequacy and overall capital planning.
The OCC expects that the annual stress tests required under the final rule will be only one component of the broader stress testing activities conducted by covered institutions. In this regard, the OCC notes that the agencies have recently issued final joint guidance on “Stress Testing for Banking Organizations with More Than $10 Billion in Total Consolidated Assets.”
Under this final rule, a covered institution includes a national bank or Federal savings association for which total consolidated assets exceed $10 billion. Covered institutions are required to conduct annual stress tests as prescribed by this final rule. However, under this final rule covered institutions are divided into two categories: $10 to $50 billion covered institutions and over $50 billion covered institutions. Under this final rule, covered institutions in these different categories may be subject to differing stress test requirements and deadlines for reporting and disclosures.
The OCC recognizes that some of the under $50 billion covered institutions may be affiliated with larger institutions also subject to requirements for stress testing, reporting and disclosure. In such cases, it may be less burdensome and more appropriate for the covered institution to follow the requirements applicable to over $50 billion covered institutions. The final rule permits a $10 to $50 billion covered institution to choose to conduct its stress test under this part using the requirements applicable to an over $50 billion covered institution under those circumstances.
The determination as to whether a national bank or Federal savings association is a covered institution is based upon the institution's total consolidated assets averaged over the four most recent consecutive quarters, as reported on the institution's Call Reports for those quarters.
The date by which a national bank or Federal savings association must conduct its first annual stress test under this final rule depends on its size category and whether it becomes a covered institution before or after October 9, 2012, the effective date of this final rule. A national bank or Federal savings association that is subject to this final rule as of October 9, 2012 must conduct the annual stress test under this final rule beginning this year if it is an over $50 billion covered institution; a $10 to $50 billion covered institution would conduct its first annual stress test in 2013.
A national bank or Federal savings association that becomes a covered institution after October 9, 2012 would be required to conduct its first annual stress test in the calendar year following the year in which it becomes a covered institution. For example, a bank for which the four-quarter average of total consolidated assets exceeded $10 billion on its June 2013 Call Report (based on the average from its September 2012, December 2012, March 2013, and June 2013 Call Reports) would become a covered institution on June 30, 2013. Assuming that the bank's total consolidated assets were less than $50 billion, this bank would be required to fully implement the stress testing requirements of the rule and conduct its first stress test in the testing cycle beginning in the following calendar year, 2014. The actual time between the date on which a national bank or Federal savings association becomes a covered institution and the as-of date for the institution's first stress test would range from 9 to 18 months, depending on the specific quarter in which the bank triggered the $10 billion threshold.
In order to maintain necessary supervisory flexibility, the final rule reserves the authority to permit the OCC to designate a national bank or Federal savings association, not otherwise subject to this rule, as a covered institution. Conversely, the OCC also may exempt an otherwise covered institution from, or delay application of, certain of the annual stress test requirements, consistent with the requirements of the Dodd-Frank Act, based on the covered institution's level of complexity, risk profile, or scope of operations. Additionally, the OCC may accelerate or extend any specified deadline for stress testing, reporting or publication of the stress test results, or require additional stress tests, if the OCC determines that such modification of a deadline or additional testing is appropriate in light of the covered institution's activities, operations, risk profile, or regulatory capital. The OCC will apply notice and response procedures consistent with the procedures under 12 CFR 3.12 with respect to the exercise of reservation of authority in this final rule.
While the requirement to conduct annual stress tests applies to all national banks and Federal savings associations with total consolidated assets of more than $10 billion, the OCC will not apply the annual stress test requirements of this final rule to Federal branches or agencies of a foreign bank. The company stress test provisions under section 165(i)(2) of the Dodd-Frank Act are intended primarily to assess the impact of stress conditions on a covered institution's capital. Because Federal branches and agencies are not separately capitalized, the application of these requirements to such entities would not be meaningful.
When a covered institution comprises the bulk of the assets for a given parent holding company, the inputs to the stress tests conducted by that institution and the holding company, and the conclusions reached, would be expected to be similar. The OCC expects to take this into account in applying the requirements of this rule. For example, for a bank holding company that is essentially a shell holding company with a single national bank that has total consolidated assets of more than $10 billion, the Board and the OCC would coordinate efforts and communicate with the bank holding company and the bank on how to adequately address their respective stress testing requirements while avoiding duplication of effort.
The OCC recognizes that certain parent company structures may include one or more subsidiary banks or savings associations, each with total consolidated assets greater than $10 billion. The stress test requirements of section 165(i)(2) apply to the parent company and to each subsidiary bank or savings association of the covered company that has $10 billion or more in total consolidated assets. The OCC anticipates addressing, on a case-by-case basis through the supervisory process, instances in which it may be appropriate to modify stress testing requirements when there are multiple covered institutions within a single parent organization. In this regard, the OCC notes that even where such a covered institution is required to conduct its own stress test, the OCC does not believe that the covered institution must duplicate unnecessary stress testing systems and processes. A covered institution that is a subsidiary of a holding company subject to the Board's annual stress testing rule
Under the final rule, each covered institution would be required to conduct an annual stress test using its financial data as of September 30th of that year, unless the OCC communicates, in the fourth quarter of that year, a different required as-of date for any or all categories of financial data. The stress test must assess the potential impact of different scenarios on the capital of the covered institution and certain related items over a forward-looking, nine-quarter planning horizon (that is, through the December 31 reporting date of the second calendar year following the year containing the September 30 as-of date), taking into account all relevant exposures and activities.
The OCC will provide a minimum of three economic scenarios, reflecting baseline, adverse, and severely adverse conditions, or such additional conditions as the OCC determines appropriate, no later than November 15, which the covered institution must use for the stress test. While each scenario includes the paths of a number of economic variables that are typically considered in stress test models, the OCC expects that covered institutions may use all or a subset of the economic variables provided, and may extrapolate other variables (such as local economic variables) from the paths of the economic variables provided, as appropriate, to conduct the stress test.
The OCC notes that certain provisions within the final rule relate to covered institutions with significant trading activities. While most covered institutions will follow the stress test procedures outlined, certain covered institutions with significant amounts of trading activities (as determined by the OCC) may be required to include trading and counterparty components in its adverse and severely adverse scenarios. For these covered institutions, the OCC will select an as-of date between October 1 and December 1 of that calendar year for the data used in this component. This date will be communicated to the covered institution no later than December 1 of the calendar year. This provision is necessary to allow the OCC to tailor the trading and counterparty components for those covered institutions to ensure that the stress tests provide a meaningful identification of downside risks and assessment of the potential impact of adverse outcomes on the covered institution's capital.
The OCC anticipates that the annual stress test scenarios will be revised as appropriate to ensure that each scenario remains relevant under prevailing economic and industry conditions. The OCC will consult closely with the Board and FDIC on the development of the annual stress test scenarios to ensure consistent and comparable stress tests for all covered financial institutions and to minimize regulatory burden. Absent specific supervisory concerns, the OCC anticipates that the annual stress test scenarios will be identical for all covered financial institutions and will be the same as or nearly identical to the scenarios developed by the Board for the supervisory stress tests conducted by the Board under section 165(i)(1).
The OCC anticipates issuing proposed guidance and procedures for scenario development for comment at a later date.
The final rule requires each covered institution to use the annual stress test scenarios provided by the OCC in conducting its annual stress tests. Each covered institution must use a planning horizon of at least nine quarters over which the impact of specified scenarios would be assessed. The nine-quarter planning horizon would permit the covered institution to make informed projections of its financial and capital positions for a two-calendar-year period. The covered institution is required to calculate, for each quarter-end within the planning horizon, estimates of pre-provision net revenues (“PPNR”), potential losses, loan loss provisions, and net income that result from the conditions specified in each scenario. A covered institution also is required to calculate, for each quarter-end within the planning horizon, the potential impact on its regulatory capital levels and ratios applicable to the institution under 12 CFR part 3 or 12 CFR part 167, incorporating the effects of any expected capital actions over the planning horizon. The applicable regulatory capital levels and ratios include, for national banks, Minimum Leverage Capital Ratio Requirement (12 CFR 3.6), Risk-Based Capital Guidelines based on Basel I (Appendix A to Part 3), Risk-Based Capital Guidelines; Market Risk Adjustment (Appendix B to Part 3), and Internal-Ratings-Based and Advanced Measurement Approaches under Basel II (Appendix C to Part 3), and for Federal savings associations, Regulatory Capital Requirements (12 CFR part 167) and Risk-Based Capital Requirements and Internal-Ratings-Based and Advanced Measurement Approaches (Appendix C to part 167).
The final rule also requires each covered institution to establish and maintain a system of controls, oversight, and documentation, including policies and procedures, designed to ensure that the stress testing processes used by the covered institution are effective in meeting the requirements of the final rule. The covered institution's policies and procedures must, at a minimum, outline the covered institution's stress testing practices and methodologies, and processes for validating and updating its stress testing practices consistent with relevant supervisory guidance.
Section 165(i)(2)(B) requires a covered institution to submit a report to the Board and its primary financial regulatory agency at such time, in such form, and containing such information as the primary financial regulatory agency shall require. Section 165(i)(2)(C)(iv) compels the primary financial regulatory agencies to require
Specifically, the final rule requires that each over $50 billion covered institution submit a report of the stress test results and documentation to the OCC and to the Board by January 5. The OCC published for notice and comment specific annual stress test reporting requirements for over $50 billion covered institutions in a separate final information collection under the Paperwork Reduction Act (44 U.S.C. 3501–3521).
Consistent with section 165(i)(2), the final rule also requires each covered institution to publish a summary of the results of its annual stress tests after submitting its annual stress test report to the OCC and the Board. Specifically, under the final rule, a $10 to $50 billion covered institution must publish a summary of the results of its annual stress test before June 30, but no earlier than June 15. For an over $50 billion covered institution, disclosures must be made before March 31, but no earlier than March 15.
The final rule reflects two significant changes from the proposed rule. First, the proposed rule would have required all disclosures to be made no later than April 5. The proposed rule did not distinguish between a $10 to $50 billion covered institution and an over $50 billion covered institution. Consistent with the OCC's efforts to minimize the regulatory burden on the $10 to $50 billion covered institutions, the final rule extends the disclosure due date for these institutions to June 30. Second, this final rule replaces the specific disclosure due date with a 15-day period in which disclosures must be made. This change ensures adequate time for review of stress test results prior to disclosure.
As for the form and content of the publication of the summary of results, at a minimum the summary of the severely adverse scenario shall include a description of the types of risks (such as credit default losses and non-default credit losses by portfolio, trading losses, and risks to non-interest revenue) included in the stress test; a summary description of the methodologies used in the stress test; estimates of aggregate losses, PPNR, provisions, and pro forma capital ratios (including regulatory and any other capital ratios specified by the OCC) at the end of the planning horizon; and an explanation of the most significant causes of the changes in regulatory capital ratios. The institution must make summary results readily accessible to the public, for example, by publishing those results on a covered institution's Web site. In order to reduce burden and avoid duplicative regulatory requirements, the OCC is permitting disclosure of the summary of the stress test results by the parent bank holding company or savings and loan holding company of a covered institution if the parent holding company satisfactorily complies with the disclosure requirements under the Board's Company-Run Stress Test rule. However, the OCC reserves the right to require additional disclosures if the OCC believes that the disclosures at the holding company level do not accurately capture the potential impact of the scenarios on the condition of the covered institution.
As discussed above, covered institutions are subject to an annual stress test cycle under this final rule.
This final rule is effective immediately upon publication in the
Stress tests are a critical supervisory tool that will provide important forward-looking information to supervisors to assist in the overall assessment of a covered institution's capital adequacy. Stress tests also help determine whether additional analytical techniques and exercises are appropriate for a covered institution to employ in identifying, measuring, and monitoring risks to the financial soundness of the covered institution. Further, stress tests serve as an ongoing risk management tool that support a covered institution's forward-looking assessment of its risks and better equips such institutions to address a range of adverse outcomes.
It is necessary for a final rule be in place this fall to ensure that certain
Section 302 of Riegle Community Development and Regulatory Improvement Act (“RCDRIA”) generally requires that regulations prescribed by Federal banking agencies which impose additional reporting, disclosures or other new requirements on insured depository institutions take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form unless an agency finds good cause that the regulations should become effective sooner. The final rule will be effective immediately upon publication in the
In accordance with section 3512 of the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. 3501–3521), the OCC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number. The information collection requirements contained in this final rule were submitted by the OCC to OMB for review and approval in connection with the proposed rule under section 3506 of the PRA and § 1320.11 of OMB's implementing regulations (5 CFR part 1320
In accordance with 5 CFR 1320, OMB withheld approval of the collection instructing the OCC to examine public comment in response to the proposed rule and include in the supporting statement of the next information collection request (“ICR”)—to be submitted to OMB at the final rule stage—a description of how the OCC has responded to any public comments on the ICR, including comments on maximizing the practical utility of the collection and minimizing the burden. The OCC received no comments on the ICR and is resubmitting it with the issuance of the final rule, as instructed by OMB.
In addition, a 60-day
Section 46.6(a) specifies the calculations of the potential impact on capital that must be made during each quarter of a planning horizon. Section 46.6(c) requires that each covered institution must establish and maintain a system of controls, oversight, and documentation, including policies and procedures that, at a minimum, describe the covered institution's stress test practices and methodologies, and processes for updating the covered institution's stress test practices. The board of directors of the covered institution shall approve and review the policies and procedures of the covered institution, as frequently as economic conditions or the condition of the institution may warrant, but no less than annually. The senior management of the covered institution shall establish and maintain a system of controls, oversight, and documentation designed to ensure that the stress test processes satisfy the requirements in this part.
Section 46.7 provides that each covered institution shall report to the OCC and to the Board annually the results of the stress test in the time, manner and form specified by the OCC.
Section 46.8 requires that a covered institution shall publish a summary of the results of its annual stress tests on its Web site or in any other forum that is reasonably accessible to the public. For a $10 to $50 billion covered institution the summary must be published in the period from June 15 to June 30 after the date of the report; for an over $50 billion covered institution the summary must be published in the period from March 15 to March 31 after the date of the report. The summary must include a description of the types of risks being included in the stress test and estimates of aggregate losses, net income, and pro forma capital ratios (including regulatory and any other capital ratios specified by the OCC) over the planning horizon, under the severely adverse scenario.
The Regulatory Flexibility Act, 5 U.S.C. 601
The final rule would apply only to national banks and Federal savings associations with more than $10 billion in total consolidated assets. No small banking organizations satisfy these criteria. No small entities would be subject to this rule. Therefore, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104–4 (2 U.S.C. 1532) (“Unfunded Mandates Act”), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that this final rule will not result in expenditures by state, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this final rule is not subject to section 202 of the Unfunded Mandates Act.
Section 722 of the Gramm-Leach-Bliley Act
Banking, Banks, Capital, Disclosures, National banks, Recordkeeping, Reporting, Risk, Stress test.
For the reasons stated in the preamble, the OCC is adding part 46 to Title 12, Chapter I of the Code of Federal Regulations to read as follows:
12 U.S.C. 93a; 12 U.S.C. 1463(a)(2); 12 U.S.C. 5365(i)(2); 12 U.S.C. 5412(b)(2)(B).
(a)
(b)
For purposes of this part, the following definitions apply:
(a)
(b)
(2) A national bank or Federal savings association that is an over $50 billion covered institution, as defined in § 46.2 of this part, as of October 9, 2012 must conduct its first stress test under this part using financial statement data as of September 30, 2012, and report the results of its stress test on or before January 5, 2013.
(c)
(d)
(2) Notwithstanding paragraph (d)(1) of this section, a national bank or Federal savings association that migrates from a $10 to $50 billion covered institution to an over $50 billion covered institution shall be subject to the stress test requirements applicable to an over $50 billion covered institution immediately as of the date the national bank or Federal savings association satisfies the size threshold for an over $50 billion covered institution, as defined in § 46.2 of this part.
(e)
(2) Any $10 to $50 billion covered institution that elects to apply the requirements of an over $50 billion covered institution under this paragraph shall remain subject to the requirements applicable to an over $50 billion covered institution until otherwise approved by the OCC.
(a)
(1)
(2)
(3)
(b)
(c)
Each covered institution must conduct the annual stress test under this part subject to the following requirements:
(a)
(b)
(c)
(d)
(a)
(1) Pre-provision net revenues, losses, loan loss provisions, and net income, and
(2) The potential impact on the covered institution's regulatory capital levels and ratios applicable to the covered institution under 12 CFR part 3 or part 167, as applicable, and any other capital ratios specified by the OCC, incorporating the effects of any capital actions over the planning horizon and maintenance by the covered institution of an allowance for loan losses appropriate for credit exposures throughout the planning horizon.
(b)
(c)
(2) The board of directors of the covered institution, or a committee thereof, shall approve and review the policies and procedures of the covered institution's stress testing processes as frequently as economic conditions or the condition of the institution may warrant, but no less than annually. The board of directors and senior management must be provided with a summary of the stress test results.
(a)
(b)
(c)
(a)
(2) A $10 to $50 billion covered institution must publish a summary of the results of its annual stress test in the period starting June 15 and ending June 30 of the next calendar year.
(3) A $10 to $50 billion covered institution that is subject to its first annual stress test pursuant to § 46.3(b)(1) of this part must make its initial public disclosure in the period starting June 15 and ending June 30 of 2015 by disclosing the results of a stress test conducted in 2014, using financial statement data as of September 30, 2014.
(b)
(c)
(1) A description of the types of risks included in the stress test under this part;
(2) A summary description of the methodologies used in the stress test;
(3) Estimates of aggregate losses, pre-provision net revenue, provisions for loan and lease losses, net income, and pro forma capital ratios (including regulatory and any other capital ratios specified by the OCC); and
(4) An explanation of the most significant causes of the changes in regulatory capital ratios.
(d)
(2) With respect to the capital ratio disclosure required in paragraph (d)(1) of this section, the disclosure must also include the value at the beginning of the planning horizon, and the minimum over the planning horizon of the estimated quarter-end values of each ratio.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Deer Lodge-City-County Airport, Deer Lodge, MT. Controlled airspace is necessary to accommodate aircraft using new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Deer Lodge-City-County Airport. This improves the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Effective date, 0901 UTC, January 10, 2013. The Director of the
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4537.
On July 17, 2012, the FAA published in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace, extending upward from 700 feet above the surface, at Deer Lodge-City-County Airport, to accommodate IFR aircraft executing new RNAV (GPS) standard instrument approach procedures at the airport. This
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Deer Lodge-City-County Airport, Deer Lodge, MT.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of the Deer Lodge-City-County Airport; that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 46°41′00″ N., long. 114°08′00″ W.; to lat. 47°03′00″ N., long. 113°33′00″ W.; to lat. 46°28′00″ N., long. 112°15′00″ W.; to lat. 45°41′00″ N., long. 112°13′00″ W.; to lat. 45°44′00″ N., long. 113°03′00″ W.; thence to the point of origin.
Bureau of Industry and Security, Commerce.
Final rule.
This rule amends the Export Administration Regulations (EAR) by adding one hundred and sixty-four persons under one hundred and sixty-five entries to the Entity List. The persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These persons will be listed on the Entity List under twelve destinations. These additions to the Entity List consist of one person under Belize; thirteen persons under Canada; two persons under Cyprus; one person under Estonia; eleven persons under Finland; five persons under Germany; one person under Greece; two persons under Hong Kong; one person under Kazakhstan; one hundred and nineteen persons under Russia; two persons under Sweden; and seven persons under the United Kingdom, including six persons located in the British Virgin Islands.
The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of license exceptions in such transactions is limited.
Karen Nies-Vogel, Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482–5991, Fax: (202) 482–3911, Email:
The Entity List (Supplement No. 4 to 15 CFR part 744) provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from BIS and that the availability of license exceptions in such transactions is limited. Entities are placed on the Entity List on the basis of certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.
The End-user Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.
This rule implements the decision of the ERC to add one hundred and sixty-
The ERC reviewed Section 744.11(b) (Criteria for revising the Entity List) in making the determination to add these persons to the Entity List. Under that paragraph, persons for which there is reasonable cause to believe, based on specific and articulable facts, that the persons have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List pursuant to Section 744.11. Paragraphs (b)(1)–(b)(5) of Section 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. All one hundred and sixty-four persons being added under one hundred and sixty-five entries are believed to have been involved in activities described under paragraph (b)(5) of Section 744.11. Paragraph (b)(5) specifies that the types of activities that could be contrary to the national security or foreign policy interests of the United States include engaging in conduct that poses a risk of violating the EAR when such conduct raises sufficient concern that the ERC believes that prior review of exports, reexports, or transfers (in-country) involving the party and the possible imposition of license conditions or license denial enhances BIS's ability to prevent violations of the EAR.
The ERC determined to add the one hundred and sixty-four persons to the Entity List on the basis of § 744.11 of the Export Administration Regulations (EAR): engaging in activities contrary to the national security and foreign policy interests of the United States. Specifically, the persons recommended for addition to the Entity List in this rule were identified during a U.S. Government investigation of a network of companies and individuals involved in the procurement and delivery of items subject to the EAR and the International Traffic in Arms Regulations to Russia in violation of the EAR and ITAR. These persons undertook procurement and delivery activities, activities to conceal the procurement and delivery activities, activities to circumvent EAR and ITAR license requirements, and/or activities to facilitate the procurement of export-restricted items for Russian military-related and other governmental or related end-uses.
For the one hundred and sixty-four persons added to the Entity List, the ERC specified a license requirement for all items subject to the EAR, and established a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to those persons being added to the Entity List.
This final rule adds the following one hundred and sixty-four persons under one hundred and sixty-five entries to the Entity List:
(1)
(1)
(2)
(3)
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(1)
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(1)
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(1)
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36 Mitinskaya St, Building 1, Office 406, Moscow, Russia 125430;
53 Shcherbakovskaya Street, Moscow 105187;
72 Lenigradsky Avenue, Bldg 4, Moscow, Russia 125315;
(119)
(1)
(2)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on October 9, 2012, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2012, 77 FR 49699 (August 16, 2012), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730–774) is amended as follows:
50 U.S.C. app. 2401
The additions read as follows:
Federal Bureau of Investigation, Department of Justice.
Final rule.
The Department of Justice (DOJ or Department) is issuing a final rule for the new Federal Bureau of Investigation (FBI) Privacy Act system of records titled FBI Data Warehouse System, JUSTICE/FBI–022. This system is being exempted from the subsections of the Privacy Act listed below for the reasons set forth in the following text. Information in this system of records relates to law enforcement matters, and the exemptions are necessary to avoid interference with the national security and criminal law enforcement functions and responsibilities of the FBI.
Kristin Meinhardt, Assistant General Counsel, Privacy and Civil Liberties Unit, Office of the General Counsel, FBI, Washington, DC 20535–0001, telephone 202–324–3000.
Notice of the proposed rule with invitation to comment was published on July 10, 2012, at 77 FR 40539. The Department received one comment from a member of the public questioning the legality and appropriateness of the proposed exemptions. The Department has carefully considered the comment but has declined to adopt it because these exemptions are expressly authorized by the Privacy Act and are appropriate and justified for the reasons set forth in the rule.
Administrative practices and procedures, Courts, Freedom of Information, Privacy, Sunshine Act.
Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940–2008, 28 CFR part 16 is amended as follows:
5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
(v) The following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4);
(1) FBI Data Warehouse System, (JUSTICE/FBI–022).
(2) These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j) and (k). Where compliance with an exempted provision could not appear to interfere with or adversely affect interests of the United States or other system stakeholders, the Department of Justice (DOJ) in its sole discretion may waive an exemption in whole or in part; exercise of this discretionary waiver prerogative in a particular matter shall not create any entitlement to or expectation of waiver in that matter or any other matter. As a condition of discretionary waiver, the DOJ in its sole discretion may impose any restrictions deemed advisable by the DOJ (including, but not limited to, restrictions on the location, manner, or scope of notice, access, or amendment).
(w) Exemptions from the particular subsections are justified for the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because this system is exempt from the access provisions of subsection (d). Also, because making available to a record subject the accounting of disclosures from records concerning him/her would specifically reveal any law enforcement or national security investigative interest in the individual by the FBI or agencies that are recipients of the disclosures. Revealing this information could compromise ongoing, authorized law enforcement and intelligence efforts, particularly efforts to identify and defuse any potential acts of terrorism or other potential violations of criminal law. Revealing this information could also permit the record subject to obtain valuable insight concerning the information obtained during any investigation and to take measures to circumvent the investigation.
(2) From subsection (c)(4) notification requirements because this system is exempt from the access and amendment provisions of subsection (d) as well as the accounting of disclosures provision of subsection (c)(3).
(3) From subsections (d)(1), (2), (3), and (4) and (e)(4)(G) and (H) because these provisions concern individual access to and amendment of law enforcement, intelligence and counterintelligence, and counterterrorism records, and compliance could alert the subject of an authorized law enforcement or intelligence activity about that particular activity and the investigative interest of the FBI or other law enforcement or intelligence agencies. Providing access could compromise sensitive information classified to protect national security; disclose information that would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigative or intelligence technique; could provide information that would allow a subject to avoid detection or apprehension; or constitute a potential danger to the health or safety of law enforcement personnel, confidential sources, and witnesses. The FBI takes seriously its obligation to maintain accurate records despite its assertion of this exemption, and to the extent it, in its sole discretion, agrees to permit amendment or correction of FBI records, it will share that information in appropriate cases with subjects of the information.
(4) From subsection (e)(1) because it is not always possible to know in advance what information is relevant and necessary for law enforcement and intelligence purposes. The relevance and utility of certain information that may have a nexus to terrorism or other crimes may not always be evident until and unless it is vetted and matched with other sources of information that are necessarily and lawfully maintained by the FBI.
(5) From subsections (e)(2) and (3) because application of these provisions could present a serious impediment to efforts to solve crimes and improve national security. Application of these provisions would put the subject of an investigation on notice of that fact and allow the subject an opportunity to engage in conduct intended to impede that activity or avoid apprehension.
(6) From subsection (e)(4)(I), to the extent that this subsection is interpreted to require more detail regarding the record sources in this system than has been published in the
(7) From subsection (e)(5) because in the collection of information for authorized law enforcement and intelligence purposes, it is impossible to determine in advance what information is accurate, relevant, timely and complete. With time, seemingly irrelevant or untimely information may acquire new significance when new details are brought to light. Additionally, the information may aid in establishing patterns of activity and providing criminal or intelligence leads. It could impede investigative progress if it were necessary to assure relevance, accuracy, timeliness and completeness of all information obtained during the scope of an investigation. Further, some of the records in this system come from other agencies and it would be administratively impossible for the FBI to vouch for the compliance of these agencies with this provision.
(8) From subsection (e)(8) because to require individual notice of disclosure of information due to compulsory legal process would pose an impossible administrative burden on the FBI and may alert the subjects of law enforcement investigations, who might be otherwise unaware, to the fact of those investigations.
(9) From subsections (f) and (g) to the extent that the system is exempt from other specific subsections of the Privacy Act.
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to approve the State Implementation Plan (SIP) submissions, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), as demonstrating that the State meets portions of the SIP requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 1997 annual and 2006 24-hour fine particulate matter (PM
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2012–0402. All documents in the docket are listed on the
Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9043. Mr. Lakeman can be reached via electronic mail at
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 38652), EPA promulgated a new annual PM
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this final rulemaking are listed below
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.
• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
EPA is taking final action to approve Mississippi's infrastructure submissions as demonstrating that the State meets portions of the applicable requirements of sections 110(a)(1) and (2) of the CAA
EPA received no adverse comments on its June 12, 2012, proposed approval of portions of Mississippi's December 7, 2007, and on October 6, 2009, infrastructure submissions. Additionally, on September 6, 2012, EPA signed a final rulemaking action approving revisions to Mississippi's New Source Review (NSR) requirements, which Mississippi relies in part on to meet the requirements for sections 110(a)(2)(C) and 110(a)(2)(J) for the 1997 annual and 2006 24-hour PM
EPA is finalizing its determination that Mississippi's infrastructure submissions, provided to EPA on December 7, 2007, and October 6, 2009, address all the required infrastructure elements for the 1997 annual and 2006 24-hour PM
EPA has determined that MDEQ has addressed certain elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that 1997 annual and 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to approve the State Implementation Plan (SIP) revision, submitted by the Mississippi Department of Environmental Quality, on July 26, 2012. This SIP revision was submitted to address Clean Air Act (CAA or Act) section 110(a)(2)(G). Specifically, EPA is approving Mississippi's July 26, 2012, submission addressing section 110(a)(2)(G), of the CAA for both the 1997 and 2006 fine particulate matter (PM
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2012–0238. All documents in the docket are listed on the
Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9043. Mr. Lakeman can be reached via electronic mail at
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 38652), EPA promulgated a new annual PM
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. However, EPA is only addressing element 110(a)(2)(G) in this action.
EPA is taking final action to approve Mississippi's infrastructure submission as demonstrating that the State meets the applicable requirements of section 110(a)(2)(G) of the CAA for the 1997 annual and 2006 24-hour PM
On July 31, 2012, EPA proposed to approve Mississippi's July 13, 2012, draft SIP revision addressing section 110(a)(2)(G). EPA's July 31, 2012 (77 FR 45320), proposed approval was contingent upon Mississippi providing EPA with a final SIP revision that was not changed significantly from the July 13, 2012, draft SIP revision. Mississippi provided its final SIP revision on July 26, 2012. There were no significant changes made to the final submittal. All other applicable Mississippi infrastructure elements are being addressed in a separate rulemakings.
EPA received one off-topic comment on its July 31, 2012, proposed rulemaking to approve Mississippi's July 13, 2012, draft SIP revision as meeting the section 110(a)(2)(G) requirements of the CAA for the 1997 annual and 2006 24-hour PM
This comment does not appear to be related to the issues presented in the proposed rulemaking, and instead, appears related to a wholly separate topic—promulgation of the PM NAAQS. Promulgations of NAAQS involve public comment opportunities, and that would be the time to raise concerns specific to a particular NAAQS. Additionally, with regard to Commenter's general statement about consent decrees, although it is not clear to which specific consent decree Commenter is referring, the CAA does provide for opportunities for public input regarding certain consent decrees.
EPA does not interpret these comments as relevant to the topic of EPA's July 31, 2012, proposed action, which proposed approval of Mississippi's draft SIP revision pertaining to section 110(a)(2)(G) infrastructure requirements for the existing 1997 annual and 2006 24-hour PM
Mississippi's infrastructure submission regarding section 110(a)(2)(G), provided to EPA on July 26, 2012, in final form, addressed the 110(a)(2)(G) requirements for the 1997 annual and 2006 24-hour PM
As already described, Mississippi has addressed section 110(a)(2)(G) requirements pursuant to EPA's October 2, 2007, guidance to ensure that 1997 annual and 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate Matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is issuing this direct final rule to amend the definition of heating oil in the Renewable Fuel Standard (“RFS” or “RFS2”) program under section 211(o) of the Clean Air Act. This amendment will expand the scope of renewable fuels that can generate Renewable Identification Numbers (RINs) as heating oil to include fuel oil produced from qualifying renewable biomass that will be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. Fuel oils used to generate process heat, power, or other functions will not be included in the amended definition. Producers or importers of fuel oil that meets the amended definition of heating oil will be allowed to generate RINs, provided that the fuel oil meets the other requirements specified in the RFS regulations. This amendment will not modify or limit fuel included in the current definition of heating oil. EPA is also amending the requirements under EPA's diesel sulfur program related to the sulfur content of locomotive and marine diesel fuel produced by transmix processors. These amendments will allow locomotive and marine diesel fuel produced by transmix processors to meet a maximum 500 parts per million (ppm) sulfur standard provided that; the fuel is used in older technology locomotive and marine engines that do not require 15 ppm sulfur diesel fuel, the fuel is used outside of the Northeast Mid-Atlantic Area, and the fuel is kept segregated from other fuel. These amendments will provide significant regulatory relief for transmix processors while having a neutral or net positive environmental impact. EPA is also amending the fuel marker requirements for 500 ppm sulfur locomotive and marine (LM) diesel fuel to address an oversight in the original rulemaking where the regulations failed to incorporate provisions described in the rulemaking preamble to allow for solvent yellow 124 marker to transition out of the distribution system.
This rule is effective on December 10, 2012 without further notice, unless EPA receives adverse comment or a public hearing request by November 8, 2012. If EPA receives a timely adverse comment or a hearing request on the rule or any specific portion of this rule, we will publish a withdrawal of the rule or a specific portion of the rule in the
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2012–0223, by one of the following methods:
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Kristien Knapp, Office of Transportation and Air Quality, Mail Code: 6405J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 20460; telephone number: (202) 343–9949; fax number: (202) 343–2800; email address:
EPA is issuing a direct final rule to amend provisions in the renewable fuel standard (RFS) and diesel sulfur fuel programs. The RFS amendment changes the definition of home heating oil, and the diesel sulfur amendments provide additional flexibility for transmix processors who produce locomotive and marine diesel fuel, and allow solvent yellow 124 marker to transition out of the distribution system. EPA is taking this action under section 211 of the Clean Air Act.
This rule amends the definition of heating oil in 40 CFR 80.1401 in the renewable fuel standard (“RFS” or “RFS2”) program promulgated under section 211(o) of the Clean Air Act (CAA). This amendment will expand the scope of renewable fuels that can generate Renewable Identification Numbers (“RINs”) as “home heating oil” to include fuel oil that will be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. This rule will allow producers or importers of fuel oil that meets the amended definition of heating oil to generate RINs, provided that other requirements specified in the regulations are met. Fuel oils used to generate process heat, power, or other functions will not be approved for RIN generation under the amended definition of heating oil. The amendment will not modify, limit, or change fuel included in the current definition of heating oil at 40 CFR 80.2(ccc).
The diesel transmix amendments will reinstate an allowance for transmix processors to produce 500 ppm sulfur diesel fuel for use in older technology locomotive and marine diesel outside of the Northeast Mid-Atlantic Area after 2014. EPA's ocean-going vessels rule forbade this allowance beginning 2014 because a new stream of diesel, containing up to 1000 ppm sulfur, was introduced at that time, which we believed would provide a suitable outlet for transmix distillate product. Transmix processors stated that they were not aware of the changes to the 500-ppm LM transmix provisions until after they were finalized, and that the ocean-going vessels market would not be a viable outlet for their distillate product. Based on additional input that we received from transmix processors and other stakeholders in the fuel distribution system during our consideration of the petition, EPA believed that it would be appropriate to extend the 500-ppm diesel transmix flexibility beyond 2014. EPA finalized a settlement agreement and this DFR and NPRM are in accord with the settlement agreement. Our analysis indicates that extending this flexibility beyond 2014 will have a neutral or net beneficial effect on overall emissions.
The yellow marker amendments address an oversight in the original nonroad diesel rulemaking. In that rulemaking, the regulations failed to incorporate provisions described in the rulemaking preamble. The preamble made clear that EPA intended to allow 500 ppm locomotive marine (LM) diesel fuel containing greater than 0.10 milligrams per liter of Solvent Yellow 124 (SY124) time to transition out of the fuel distribution system. However, the regulations are not consistent with the preamble and did not provide this same allowance.
Specifically, the regulations as currently written do not provide any transition time for unmarked LM fuel delivered from a truck loading rack beginning June 1, 2012 to work its way through the fuel distribution system downstream of the truck loading rack. The yellow marker amendments will allow 500 ppm LM diesel fuel at any point in the fuel distribution and end use system to contain more than 0.10 milligrams per liter of SY 124 through November 30, 2012. This regulatory change will allow marked LM diesel fuel to transition normally through the LM fuel distribution and use system. Today's rule also amends the regulation
These three sets of amendments attempt to provide new opportunities for RIN generation under the RFS program and necessary flexibilities and transition periods for those affected by EPA's transmix and marker requirements. Therefore, EPA believes that these amendments will impose no new direct costs or burdens on regulated entities beyond the minimal costs associated with reporting and recordkeeping requirements. At the same time, EPA does not believe that any of these amendments will adversely impact emissions.
EPA is publishing this rule without a prior proposed rule because this may be viewed as a noncontroversial action that would not receive adverse comment. However, in the “Proposed Rules” section of today's
Entities potentially affected by this action include those involved with the production, distribution and sale of transportation fuels, including gasoline and diesel fuel, or renewable fuels such as ethanol and biodiesel, as well as those involved with the production, distribution and sale of other fuel oils that are not transportation fuel. Regulated categories and entities affected by this action include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria of Part 80, subparts D, E and F of title 40 of the Code of Federal Regulations. If you have any question regarding applicability of this action to a particular entity, consult the person in the preceding
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EPA is issuing a direct final rule to amend the definition of heating oil in 40 CFR 80.1401 in the renewable fuel standard (“RFS” or “RFS2”) program promulgated under section 211(o) of the Clean Air Act (CAA).
The RFS program requires the production and use of renewable fuel to replace or reduce the quantity of fossil fuel present in transportation fuel. Under EPA's RFS program this is accomplished by providing for the generation of RINs by producers or importers of qualified renewable fuel. RINs are transferred to the producers or importers of gasoline and diesel transportation fuel who then use the RINs to demonstrate compliance with their renewable fuel volume obligations. RINs also serve the function of credits under the RFS program.
Congress provided that EPA could also establish provisions for the generation of credits by producers of certain renewable fuel that was not used in transportation fuel, called “additional renewable fuel.”
EPA addressed the provision for additional renewable fuels in the RFS2 rulemaking, specifically addressing the category of “home heating oil.” EPA determined that this term was ambiguous, and defined it by incorporating the existing definition of heating oil at 40 CFR 80.2(ccc). EPA stated that:
EISA uses the term “home heating oil” in the definition of “additional renewable fuel.” The statute does not clarify whether the term should be interpreted to refer only to heating oil actually used in homes, or to all fuel of a type that can be used in homes. We note that the term `home heating oil' is typically used in industry in the latter manner, to refer to a type of fuel, rather than a particular use of it, and the term is typically used interchangeably in industry with heating oil, heating fuel, home heating fuel, and other terms depending on the region and market. We believe this broad interpretation based on typical industry usage best serves the goals and purposes of the statute. If EPA interpreted the term to apply only to heating oil actually used in homes, we would necessarily require tracking of individual gallons from production through ultimate [use] in homes in order to determine eligibility of the fuel for RINs. Given the fungible nature of the oil delivery market, this would likely be sufficiently difficult and potentially expensive so as to discourage the generation of RINs for renewable fuels used as home heating oil. This problem would be similar to that which arose under RFS1 for certain renewable fuels (in particular biodiesel) that were produced for the highway diesel market but were also suitable for other markets such as heating oil and non-road applications where it was unclear at the time of fuel production (when RINs are typically generated under the RFS program) whether the fuel would ultimately be eligible to generate RINs. Congress eliminated the complexity with regards to non-road applications in RFS2 by making all fuels used in both motor vehicle and nonroad applications subject to the renewable fuel standard program. We believe it best to interpret the Act so as to also avoid this type of complexity in the heating oil context. Thus, under today's regulations, RINs may be generated for renewable fuel used as “heating oil,” as defined in existing EPA regulations at § 80.2(ccc). In addition to simplifying implementation and administration of the Act, this interpretation will best realize the intent of EISA to reduce or replace the use of fossil fuels.
The existing definition of heating oil at 40 CFR 80.2(ccc) means “any #1, #2, or non-petroleum diesel blend that is sold for use in furnaces, boilers, stationary diesel engines, and similar applications and which is commonly or commercially known or sold as heating oil, fuel oil, or similar trade names, and that is not jet fuel, kerosene, or [Motor Vehicle, Non-Road, Locomotive and Marine (MVNRLM)] diesel fuel.” The existing definition of non-petroleum diesel at 40 CFR 80.2(sss) means a diesel fuel that contains at least 80 percent mono-alkyl esters of long chain fatty acids derived from vegetable oils or animal fats. Thus, in order to generate RINs for home heating oil that is a non-petroleum diesel blend, the fuel must contain at least 80 percent mono-alkyl esters of long chain fatty acids derived from vegetable oils or animal fats, as well as meeting all other requirements of the RFS2 regulations. Since the promulgation of the RFS2 final rule, we have received a number of requests from producers to consider expanding the scope of the home heating oil provision to include additional fuel oils that are produced from qualifying renewable biomass but do not meet the regulatory definition of heating oil because they are not #1 or #2 diesel and do not contain at least 80 percent mono-alkyl esters. Parties raising this issue have suggested that limiting “home heating oil” to the fuel types defined in 40 CFR 80.2(ccc) disqualifies certain types of renewable fuel oils that could be used for home heating and that this limitation does not align with our reasoning in the preamble to take a broad interpretation of the term “home heating oil” in CAA section 211(o).
EPA has considered this issue further and is revising the definition of heating oil in the RFS2 program to expand the scope of fuels that can generate RINs as heating oil. EPA is revising the definition such that RINs also may be generated by renewable fuel that is fuel oil and is used to heat interior spaces of homes or buildings to control ambient climate for human comfort. This will not include fuel oils used to generate process heat, power, or other functions. The fuel oil must be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. The fuel oil must only be used in heating applications, where the sole purpose of the fuel's use is for heating and not for any other combined use such as process energy use. We are amending the existing definition of heating oil in 40 CFR 80.1401 to include fuel oils that are used in this way. This is in addition to the fuel oils currently included in the definition of heating oil at 40 CFR 80.2(ccc), and will not modify or limit the fuel included in the current definition.
EPA believes this expansion of the scope of the home heating oil provision is appropriate and authorized under CAA section 211(o). As EPA described
In the RFS2 rulemaking, EPA focused on the kinds of fuel oils that can be used to heat homes. The expansion of the definition adopted in this rulemaking will address two types of fuel oils not included in the current definition of heating oil. First, the amended definition will include additional fuel oils that are actually used to heat homes, even if they do not meet the current definition of heating oil. This is clearly within the scope of the statutory provision for home heating oil.
Second, the amended definition will include fuel oils that are used to heat facilities other than homes to control ambient climate for human comfort. Under the current definition of heating oil, a fuel oil meets the definition based on its physical properties and its use in furnaces, boilers, stationary diesel engines, and similar applications, not whether it is actually used to heat a home. The basic decision made in the RFS2 final rulemaking was to allow RIN generation for the group of fuel oils that are typically used for home heating purposes. Under the current definition the relationship of the fuel oil to heating homes is that the fuel oil is of the type that is typically used for and can be used for that purpose.
In the amended definition, qualifying fuel oils will be used for heating places where people live, work, or recreate, and not just their homes. It focuses more on what is getting heated—people—and not where the people are located. EPA believes this is a reasonable interpretation of the phrase “home heating oil,” while recognizing that it is not an obvious interpretation. This interpretation recognizes the ambiguity of the phrase used by Congress, which is not defined and does not have a clear and definite commercial meaning. It gives reasonable meaning to the term home heating oil, by limiting the additional fuel oils to fuel oils when used for heating of facilities that people will occupy, and excluding fuel oils when used for other purposes such as generation of energy used in the manufacture of products. It also focuses on the aspect of home that is important here—the heating of people—recognizing that EPA has already determined that fuel oil can be included in the scope of home heating oil even if it is not actually used to heat a home. This interpretation will also promote the purposes of the EISA and the RFS program. It will promote the purposes of the EISA in that it will increase the production and use of renewable fuels by introducing new sources of fuel producers to the RFS program. It will specifically promote the RFS programmatic goals by facilitating the generation of RINs for renewable fuels that reduce emissions of greenhouse gases compared to fossil fuels. For example, EPA has received information from Envergent Technologies (alliance of Ensyn and UOP/Honeywell) that such an expanded definition of heating oil would result in nearly immediate production of 3.5 million gallons from their existing facilities, with an additional projected production of up to 45 million gallons per year within 24 months following regulatory action. Based on this information from Envergent Technologies, application of the expanded definition of heating oil to the entire industry would result in the production of many more million additional gallons of renewable fuel.
EPA has also evaluated whether any revisions will need to be made to Table 1 to 40 CFR 80.1426 that lists the applicable D codes for each fuel pathway for use in generating RINs in the RFS2 regulations in light of the additional fuel oils included in the expanded definition of heating oil. As discussed below, EPA has determined that the applicable D code entries for heating oil in Table 1 to 40 CFR 80.1426 will continue to be appropriate and will not need to be revised in light of the expanded definition of heating oil.
Under the RFS program, EPA must assess lifecycle greenhouse gas (GHG) emissions to determine which fuel pathways meet the GHG reduction thresholds for the four required renewable fuel categories. The RFS program requires a 20% reduction in lifecycle GHG emissions for conventional renewable fuel (except for grandfathered facilities and volumes), a 50% reduction for biomass-based diesel or advanced biofuel, and a 60% reduction for cellulosic biofuel. For the final RFS2 rule, EPA assessed the lifecycle greenhouse gas emissions of multiple renewable fuel pathways and classified pathways based on these GHG thresholds, as compared to the EISA statutory baseline.
The fuel pathways consist of fuel type, feedstock, and production process requirements. GHG emissions are assessed at all points throughout the lifecycle pathway. For instance, emissions associated with sowing and harvesting of feedstocks and in the production, distribution and use of the renewable fuel are examples of what are accounted for in the GHG assessment. A full accounting of emissions is then compared with the petroleum baseline emissions for the transportation fuel being replaced. The lifecycle GHG emissions determination is one factor used to determine compliance with the regulations.
There are currently several fuel pathways that list heating oil as a fuel type with various types of feedstock and production processes used, qualifying the heating oil pathways as either biomass-based diesel, advanced, or cellulosic. The determinations for these different pathways were based on the current definition of heating oil. The pathways also include several types of distillate product including diesel fuel, jet fuel and heating oil.
The lifecycle calculations and threshold determinations are based on the GHG emissions associated with production of the fuel and processing of the feedstock. Converting biomass feedstocks such as triglycerides (if oils are used as feedstock) or hemi-cellulose, cellulose, lignin, starches, etc. (if solid biomass feedstock is used) into heating oil products and can be accomplished through either a biochemical or thermochemical process converting those molecules into a fuel product. The existing heating oil pathways were based on the current definition of the fuel, and were based on a certain level of processing to produce #1, #2, or a non-petroleum diesel blend and the
The main difference between the current definition of heating oil, which refers to #1, #2, or a non-petroleum diesel blend, and the expanded definition adopted in this rulemaking is that the expanded definition will include heavier types of fuel oil with larger molecules. Based on the type of conversion process, producing these heavier fuel oil products versus the #1, #2, or a non-petroleum diesel blend will affect the amount of energy used and therefore the GHG emissions from the process. There are two main paths for producing a fuel oil product from biomass. In one the biomass is converted into a biocrude which is further refined into lighter products. In this case producing a heavier fuel oil product will require less processing energy and have lower GHG emissions than converting the same feedstock into a #1, #2, or non-petroleum diesel blend.
In the other type of process the compounds in the biomass are changed into a set of intermediary products, such as hydrogen (H) and carbon monoxide (CO).
Based on these considerations, EPA believes the GHG emissions associated with producing the fuel oil included in the expanded definition will be the same or lower than the GHG emissions associated with producing #1, #2, or non-petroleum diesel blend. Therefore, EPA believes the prior life cycle analysis for heating oil support applying the existing pathways for fuel oil in the RFS2 regulations to the expanded definition of heating oil. Once the regulatory change to the definition of “heating oil” is final, all of the pathways currently applicable to heating oil under Table 1 to 40 CFR § 80.1426 would apply to the expanded definition of heating oil.
An important issue to address is how to implement such an expanded definition. As EPA recognized in the RFS2 rulemaking, fuel oils end up being used in a variety of different uses, where the fuel producer may have little knowledge at the time of production as to eventual use of the fuel. This is especially the case where the fuel oil is distributed in a fungible distribution system. EPA addressed this in the RSF2 rulemaking by defining home heating oil as a type of fuel with certain characteristics, irrespective of where it was used. This approach avoided the need to track the fuel to its actual use, and including the characteristics of the fuel in its definition in 40 CFR 80.1401, was adequate to retain a close tie to the concept underlying home heating oil.
The expansion of the definition raises this same issue but in a more significant way. While the expansion of the definition includes some limited physical characteristics that fuels oils will need to meet in order to qualify for generating RINs, it does not provide sufficient specificity to differentiate between those fuels oils used to heat buildings for climate control for human comfort and those used to generate process heat or other purposes. Therefore, for eligible fuel oils other than those qualifying under the existing definition in 40 CFR 80.2(ccc), EPA is requiring that the renewable fuel producer or importer have adequate documentation to demonstrate that the fuel oil volume for which RINs were generated was used to heat buildings for climate control for human comfort and meets the expanded definition of heating oil prior to generating RINs.
EPA recognizes that under the current definition of heating oil no tracking or other documentation of end use is required, and some heating oils that meet the current definition could end up being used for other purposes. However, in all cases the heating oil under the current definition has to have the physical or other characteristics that tie it to the type of fuel oil used to heat homes. In addition, because these fuel oils will qualify to generate RINs under the RFS program, it will likely lead to their use for heating of buildings, and not for generation of process heat. For the fuel oils included in the expanded definition, the tie to home heating oil will not be the physical characteristics of the fuel oil but instead its actual usage for heating for the purposes of climate control for human comfort.
In order to verify that the fuel oils are actually used to generate heat for climate control purposes, EPA is adopting the following registration, recordkeeping, product transfer document (PTD) and reporting requirements. These requirements will not apply to fuels qualifying under the existing 40 CFR 80.2(ccc) of the regulations. If RINs are generated for fuel oils under the expansion of the scope of home heating oil in today's rule, and those fuel oils are designated for but not actually used to generate heat for climate control purposes, but for some other purpose, all parties involved in either the generation, assignment, transfer or use of that RIN, including the end user of that fuel oil, are subject to and liable for violations of the RFS2 regulations and the CAA.
For the purpose of registration, EPA is allowing the producer of the expanded fuel oil types to establish their facility's baseline volume in the same manner as all other producers under the RFS program,
For the purpose of continued verification after registration, EPA is adopting additional requirements for reporting in § 80.1451(b)(1)(ii)(T), PTDs in § 80.1453(d), and recordkeeping in 40 CFR 80.1454(b), for the expanded fuel oil types.
The reporting, PTD, and recordkeeping requirements will help ensure that the expanded fuel oil types that are used to generate RINs are actually used in a qualifying application. For reporting, producers are required to file quarterly reports with EPA that identify certain information about the volume of fuel oil produced and used as heating oil. The additional reporting requirements stipulate that the producer of fuel oils submit affidavits to EPA reporting the total quantity of the fuel oils produced, the total quantity of the fuel oils sold to end users, and the total quantity of fuel oils sold to end users for which RINs were generated. Additionally, affidavits from each end user must be obtained by the producer and reported to EPA, describing the total quantity of fuel oils received from the producer, the total amount of fuel oil used for qualifying purposes, the date the fuel oil was received from the producer, the blend level of the fuel oil, quantity of assigned RINs received with the renewable fuel, and quantity of assigned RINs that the end user separated from the renewable fuel, if applicable.
We are also amending the regulatory text that describes the general requirements for how RINs are generated and assigned to batches of renewable fuel by renewable fuel producers and importers. This will explicitly clarify a requirement that always existed: that producers and importer of renewable fuel who generate RINs must comply with the registration requirements of 40 CFR 80.1450, the reporting requirements of 40 CFR 80.1451, the recordkeeping requirements of 40 CFR 80.1454, and all other applicable regulations of this subpart M. This is a generally applicable requirement—not specific to fuel meeting the definition of home heating oil.
The final regulations for the nonroad diesel program were published in the
Batches of different fuel products commonly abut each other as they are shipped in sequence by pipeline. When the mixture between two adjacent products is not compatible with either product, it is removed from the pipeline and segregated as transmix. Transmix typically is gathered for reprocessing at the end of the fuel distribution system far from a refinery. In addition to the long transportation distances to return transmix to a refinery for reprocessing, incorporating transmix into a refinery's feed also presents technical and logistical refining process challenges that typically make refinery reprocessing an unattractive option. Thus, transmix processers provide a valuable service in maintaining an efficient fuel distribution system. Transmix processing facilities handle very low volumes of fuel compared to a refinery and hence are limited to the use of a simple distillation tower and additional blendstocks to manufacture finished fuels. There is currently no desulfurization equipment which has been demonstrated to be suitable for application at a transmix processor facility. The cost of installing and operating a currently available desulfurization unit is too high in relation to the small volume of distillate fuel produced at transmix processing facilities. Some products shipped by pipeline such as jet fuel and heating oil are subject to relatively high sulfur specifications (
The engine emission standards finalized in the nonroad diesel rulemaking for new nonroad, locomotive, and Category 1 & 2 (C1 & C2) marine engines necessitates the use of sulfur-sensitive emissions control equipment which requires 15 ppm sulfur diesel fuel to function properly.
In the development of the proposed requirements for Category 3 (C3) marine engines, EPA worked with industry to evaluate how the enforcement provisions for the new 1,000-ppm C3 marine diesel fuel to be introduced in June of 2014 could be incorporated into existing diesel program provisions.
EPA received a petition from a group of transmix processors on June 29, 2010, requesting that the Agency reconsider and reverse the 2014 sunset date for the 500 ppm LM transmix flexibility.
Our analysis indicates that extending the 500 ppm LM flexibility beyond 2014 would have a neutral or net beneficial effect on overall vehicle emissions. The use of 500 ppm LM from transmix would be limited to older technology engines that do not possess sulfur-sensitive emissions control technology. We believe that the 500 ppm LM segregation and other associated requirements would prevent misfueling of sulfur-sensitive engines.
To evaluate the environmental consequences of extending the diesel transmix provisions, we compared the potential increase in sulfate particulate matter (PM) from the use of 500 ppm LM from transmix in older engines to the additional transportation emissions associated with shipment to the Category 3 (C3) marine market which might be deferred by allowing continued access to the 500 ppm LM market. Markets for locomotive and marine diesel tend to be nearer to transmix processing facilities than markets for C3 marine diesel. Therefore, extending the diesel transmix provisions would result in a reduction in nitrogen oxides (NO
Although some batches of transmix distillate product may approach the 500 ppm sulfur limit, we estimate that the average sulfur content of transmix distillate product would be no more than 300 ppm.
The extension of the 500 ppm LM transmix flexibility would defer additional transportation costs and provide a lower-cost fuel for use in older LM engines for many years to come given that the useful life of LM engines can exceed 40 years.
Industry stakeholders suggested alternative enforcement mechanisms to support the extended flexibility which would not necessitate reinstating and expanding the designate-and-track and fuel marker provisions that were retired by the C3 marine final rule. Reinstatement and expansion of these provisions would likely place an unacceptable burden on a large number of stakeholders, most of whom would not handle 500 ppm LM. The suggested alternative enforcement mechanism would impose minimal additional reporting and recordkeeping burdens only on the parties that produce, handle, and use 500 ppm LM. We believe that this alternative enforcement approach would meet the Agency's goals of ensuring that the pool of 500 ppm LM is limited to transmix distillate and that 500 ppm LM is not used in sulfur-sensitive emissions control equipment.
The compliance assurance provisions that we are using to support the extension of the diesel transmix flexibility are similar to those that were used to support the small refiner flexibilities in Alaska during the phase-in of EPA's diesel sulfur program.
We understand that some transmix processors currently rely on shipment by pipeline to reach the 500 ppm locomotive diesel market.
To provide an additional safeguard to ensure that volume of 500 ppm LM diesel fuel does not swell inappropriately, the volume increase during any single pipeline shipment must be limited to 2 volume percent or less. This limitation on volume swell to 2 volume percent or less is consistent with the limitation in 40 CFR 80.599 (b)(5) regarding the allowed swell in volume during the shipment of highway diesel fuel for the purposes of the determination of compliance with the now expired volume balance requirements under 40 CFR 80.598(b)(9)(vii)(B). Industry did not object to this requirement, and therefore, we believe that limiting the volume swell of 500 ppm LM diesel fuel during shipment by pipeline to 2 volume percent or less should provide sufficient flexibility.
Product transfer documents (PTDs) for 500 ppm LM diesel are required to indicate that the fuel must be distributed in compliance with the approved compliance assurance plan. Entities in the distribution chain for 500 ppm LM diesel fuel are required to keep records on the volumes of the 500 ppm that they receive from and deliver to each other entity. Based on input from fuel distributors, keeping these records will be a minimal additional burden, as discussed in section VIII.B. Such entities are also required to keep records on how the fuel was transported and segregated. We would typically expect that the volumes of 500 ppm LM delivered would be equal to or less than those received unless shipment by pipeline occurred. Some minimal increase in 500 ppm LM volume would be acceptable due to differences in temperature between when the shipped and received volumes were measured and interface cuts during shipment by pipeline. Entities that handle 500 ppm LM are required to calculate a balance of 500 ppm LM received versus delivered/used on an annual basis. If the volume of fuel delivered/dispensed is greater than that received, EPA would expect that the records would indicate the cause. If an entity's evaluation of their receipts and deliveries of 500 ppm LM fuel indicated noncompliance with the product segregation requirements, the custodian would be required to notify EPA. All entities in the 500 ppm LM distribution chain are required to maintain the specified records for 5 years and provide them to EPA upon request.
Today's rule amends the regulatory provisions regarding the transition in the fuel marker requirements for 500 ppm LM diesel fuel in 2012 to address an oversight in the original rulemaking where the regulations failed to incorporate provisions described in the rulemaking preamble. Today's rule also amends the regulatory provisions regarding the transition in the fuel marker requirements for heating oil in 2014 to provide improved clarity.
The preamble in the nonroad diesel final rule stated that EPA intended to allow 500 ppm LM diesel fuel containing greater than 0.10 milligrams per liter of solvent yellow 124 (SY124) to be present at any location in the fuel distribution system (up to and including retail and wholesale-purchaser-consumer storage tanks) until September 30, 2012.
A number of locomotive and marine wholesale purchaser-consumers have taken custody of marked 500 ppm LM diesel fuel that they will not be able to consume prior to June 1, 2012. A number of fuel suppliers also have inventories of 500 ppm LM diesel fuel on hand that they may not be able to sell to LM diesel fuel users because such users are concerned about clearing their tanks of marked LM diesel fuel by June 1, 2012. This new rule allows marked 500 ppm LM diesel fuel to transition normally through the fuel distribution and use system, consistent with the original intent of the nonroad diesel rule preamble. Today's rule allows 500 ppm LM diesel fuel at any point in the fuel distribution and end use system to contain more than 0.10 milligrams per liter of SY 124 through November 30, 2012.
We are implementing a single transition date applicable at all points in
Today's rule also amends the regulation to clarify the transition of the solvent yellow 124 marker out of heating oil beginning June 1, 2014. Specifically, today's rule amends the regulations to clarify that after December 1, 2014, EPA will no longer have any requirements with respect to the use of the solvent yellow 124 marker. This is consistent with the intent expressed in our original nonroad diesel fuel rulemaking. We do not believe these changes will adversely impact emissions.
Under Executive Order 12866 (58 CFR 51735 (October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821 (January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
The information collection requirements in this notice of proposed rulemaking and direct final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501
This action contains recordkeeping and reporting (registration and product transfer documentation) that may affect parties who produce or import renewable fuels subject to the revised definition of heating oil. EPA expects that very few parties will be subject to additional recordkeeping and reporting. We estimate that up to 11 parties (
This action also contains provisions related to diesel fuel that is produced by transmix processors. We have proposed reporting requirements that would apply to transmix processors (all of whom are refiners) and other parties (such as carriers or distributors) in the distribution chain who handle diesel fuel produced by transmix producers. The collected data will permit EPA to: (1) Process compliance plans from transmix producers; and (2) Ensure that diesel fuel made from transmix meets the standards required under the regulations at 40 CFR Part 80, and that the associated benefits to human health and the environment are realized. We estimate that 25 transmix processors and 150 other parties may be subject to the proposed information collection.
The amendments to the fuel marker requirements for locomotive and marine diesel fuel in today's rule do not contain any new recordkeeping and reporting requirements.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA has established a public docket for this rule, which includes the ICRs described above, under Docket ID number EPA–HQ–OAR–2012–0223. Submit any comments related to the ICR to EPA and OMB. See the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of 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 this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any new requirements on small entities. The amendments to the diesel transmix provisions would lessen the regulatory burden on all affected transmix processors and provide a source of lower cost locomotive and marine diesel fuel to consumers. The relatively minor corrections and modifications this rule do not impact small entities.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. We have determined that this action will not result in expenditures of $100 million or more for the above parties and thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and makes relatively minor corrections and modifications to the RFS2 and diesel sulfur regulations.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and makes relatively minor corrections and modifications to the RFS2 and diesel sulfur regulations. Thus, Executive Order 13132 does not apply to this action.
This rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249 (November 9, 2000)). It applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. This action makes relatively minor corrections and modifications to the RFS2 and diesel sulfur regulations, and does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.
EPA interprets EO 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 EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. We have concluded that this rule is not likely to have adverse energy effects because we do not anticipate adverse energy effects related to the additional generation of RINs for home heating oil or the reduced regulatory burden for transmix processors. This rule will facilitate the use of 500 ppm sulfur locomotive and marine (LM) diesel fuel, which contains the SY 124 marker that is already in the fuel distribution and use system consistent with EPA's original intent. Today's action will avoid the potential need to remove marked 500 ppm LM diesel fuel from the system for reprocessing, and the associated increased costs and potential disruption to the supply of LM diesel fuel.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so will be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income
The Congressional Review Act, 5 U.S.C. 801
Statutory authority for the rule finalized today can be found in section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of today's rule, including the recordkeeping requirements, come from sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and 7601(a).
Environmental protection, Administrative practice and procedure, Agriculture, Air pollution control, Confidential business information, Diesel fuel, Transmix, Energy, Forest and forest products, Fuel additives, Gasoline, Imports, Labeling, Motor vehicle pollution, Penalties, Petroleum, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 40 CFR part 80 is amended as follows:
42 U.S.C. 7414, 7542, 7545, and 7601(a).
(f)
(1) Except as provided for in paragraph (i) of this section, prior to distribution from a truck loading terminal, all heating oil shall contain six milligrams per liter of marker solvent yellow 124 from June 1, 2012 through May 31, 2014.
(2) All motor vehicle and NR diesel fuel shall be free of marker solvent yellow 124, and all LM diesel fuel shall be free of marker solvent yellow 124 beginning December 1, 2012.
(3) From June 1, 2012 through November 30, 2012, any diesel fuel that contains greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 shall be deemed to be either heating oil or 500 ppm sulfur LM diesel fuel and shall be prohibited from use in any motor vehicle or nonroad diesel engine (excluding locomotive, or marine diesel engines).
(4) From December 1, 2012 through November 30, 2014, any diesel fuel that contains greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 shall be deemed to be heating oil and shall be prohibited from use in any motor vehicle or nonroad diesel engine (including locomotive, or marine diesel engines).
(5) Except as provided for in paragraph (i) of this section, from June 1, 2012 through November 30, 2014, any diesel fuel, other than jet fuel or kerosene that is downstream of a truck loading terminal, that contains less than 0.10 milligrams per liter of marker solvent yellow 124 shall be considered motor vehicle diesel fuel or NRLM diesel fuel, as appropriate.
(6) Any heating oil that is required to contain marker solvent yellow 124 pursuant to the requirements of this paragraph (f) must also contain visible evidence of dye solvent red 164.
(7) Beginning December 1, 2014 there are no requirements or restrictions on the use of marker solvent yellow 124 under this subpart.
(b) * * *
(4) Except as provided in paragraphs (b)(5) through (8) of this section, the per-gallon sulfur standard of § 80.510(c) shall apply to all NRLM diesel fuel beginning August 1, 2014 for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all NRLM diesel fuel beginning October 1, 2014 for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all NRLM diesel fuel beginning December 1, 2014 for all locations. This paragraph (b)(4) does not apply to LM diesel fuel produced from transmix or interface fuel that is sold or intended for sale in areas other than those listed in § 80.510(g)(1) or (g)(2), as provided by § 80.513(f).
(10) For the purposes of this subpart, on any occasion where a distributor directly dispenses fuel into vehicles or equipment from a mobile facility such as a tanker truck, the distributor shall be treated as a retailer, and the mobile facility shall be treated as a retail outlet.
For purposes of this section, transmix means a mixture of finished fuels, such as pipeline interface, that no longer meets the specifications for a fuel that can be used or sold without further processing. This section applies to refineries (or other facilities) that produce diesel fuel from transmix by distillation or other refining processes but do not produce diesel fuel by processing crude oil. This section only applies to the volume of diesel fuel produced by such a processor using these processes, and does not apply to any diesel fuel produced by the
(e) From June 1, 2012 through June 1, 2014, NRLM diesel fuel produced by a facility that processes transmix is subject to the standards of § 80.510(c), except that LM diesel fuel produced from transmix is subject to the sulfur standard of § 80.510(a). This paragraph (e) does not apply to NRLM or LM diesel fuel that is sold or intended for sale in the areas listed in § 80.510(g)(1) or (g)(2).
(f) Beginning June 1, 2014, LM diesel fuel produced from transmix is subject to the sulfur standard of § 80.510(a), provided that the conditions in this paragraph are satisfied. Diesel fuel produced from transmix that does not meet the conditions in this paragraph is subject to the sulfur standard in § 80.510(c).
(1) The fuel must be produced from transmix.
(2) The fuel must not be sold or intended for sale in the areas listed in § 80.510(g)(1) or (g)(2).
(3) A facility producing 500 ppm LM diesel fuel must obtain approval from the Administrator for a compliance plan. The compliance plan must detail how the facility will segregate any 500 ppm LM diesel fuel produced subject to the standards under § 80.510(a) from the producer through to the ultimate consumer from fuel having other designations. The compliance plan must identify the entities that handle the 500 ppm LM through to the ultimate consumer. No more than 4 separate entities shall handle the 500 ppm LM between the producer and the ultimate consumer. The compliance plan must also identify all ultimate consumers to whom the refiner supplies the 500 ppm LM diesel fuel. The compliance plan must detail how misfueling of 500 ppm LM into vehicles or equipment that require the use of 15 ppm diesel fuel will be prevented.
(i) Producers of 500 ppm LM diesel fuel must be registered with EPA under § 80.597 prior to the distribution of any 500 ppm LM diesel fuel after June 1, 2014.
(ii) Producers of 500 ppm LM must initiate a PTD that meets the requirements in paragraph (f)(3)(iii) of this section.
(iii) All transfers of 500 ppm LM diesel fuel must be accompanied by a PTD that clearly and accurately states the fuel designation; the PTD must also meet all other requirements of § 80.590.
(iv) Batches of 500 ppm LM may be shipped by pipeline provided that such batches do not come into physical contact in the pipeline with batches of other distillate fuel products that have a sulfur content greater than 15 ppm.
(v) The volume of 500 ppm LM shipped via pipeline under paragraph (f)(3)(iv) of this section may swell by no more than 2% upon delivery to the next party. Such a volume increase may only be due to volume swell due to temperature differences when the volume was measured or due to normal pipeline interface cutting practices notwithstanding the requirement under paragraph (f)(3)(iv) of this section.
(vi) Entities that handle 500 ppm LM must calculate the balance of 500 ppm LM received versus the volume delivered and used on an annual basis.
(vii) The records required in this section must be maintained for five years, by each entity that handles 500 ppm LM and be made available to EPA upon request.
(4) All parties that take custody of 500 ppm LM must segregate the product from other fuels and observe the other requirements in the compliance plan approved by EPA pursuant to paragraph (f)(3) of this section.
(d) From June 1, 2010 and beyond, for pumps dispensing LM diesel fuel subject to the 500 ppm sulfur standard of § 80.510(a):
(d) * * *
(3) * * *
(ii) Fuel designated as 500 ppm LM diesel fuel.
(b) * * *
(9) * * *
(ii) Until June 1, 2014, any distillate fuel containing greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 required under § 80.510(d), (e), or (f) must be designated as heating oil except that from June 1, 2010, through November 30, 2012, it may also be designated as LM diesel fuel as specified under § 80.510(e).
(a) * * *
(2) Beginning June 1, 2007, produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport any diesel fuel for use in motor vehicle or nonroad engines that contains greater than 0.10 milligrams per liter of solvent yellow 124, except for 500 ppm sulfur diesel fuel sold, offered for sale, dispensed, supplied, offered for supply, stored, or transported for use in LM. from June 1, 2010 through November 30, 2012 for use only in locomotive or marine diesel engines that is marked under the provisions of § 80.510(e).
(1) A #1, #2, or non-petroleum diesel meeting the definition set forth in § 80.2(ccc); or
(2) A fuel oil that, pursuant to §§ 80.1450(b)(1)(ix) and (d)(4), 80.1451(b)(1)(ii)(T), 80.1453(d) and 80.1454(b)(7), is demonstrated to be used to heat interior spaces of homes or buildings to control ambient climate for human comfort, is capable of flowing at 60 degrees Fahrenheit and 1 atmosphere of pressure, and is not used for any other purpose.
(a) * * *
(1) * * *
(ii) Is demonstrated to be produced from renewable biomass pursuant to the reporting requirements of § 80.1451 and the recordkeeping requirements of § 80.1454; and
(iii) Was produced in compliance with the registration requirements of § 80.1450, the reporting requirements of § 80.1451, the recordkeeping requirements of § 80.1454, and all other applicable regulations of this subpart M.
(b) * * *
(1) * * *
(ix) For a producer of fuel oil meeting paragraph (2) of the definition of heating oil in § 80.1401:
(A) An affidavit from the producer of the fuel oil stating that the fuel oil for which RINs are generated will be sold for the purposes of heating interior spaces of homes or buildings to control ambient climate for human comfort, and no other purpose.
(B) Affidavits from existing final end users of the fuel oil stating that the fuel oil for which RINs are generated is being used for purposes of heating interior spaces of homes or buildings to control ambient climate for human comfort, and no other purpose.
(b) * * *
(1) * * *
(ii) * * *
(T) Producers of fuel oil that meets the paragraph (2) of the definition of heating oil in § 80.1401, shall report, on a quarterly basis, all the following for each volume of fuel oil:
(
(
(
(d) For fuel oil meeting paragraph (2) of the definition of heating oil in § 80.1401, the PTD which is used to transfer ownership or custody of the renewable fuel shall state: “This volume of renewable fuel is designated and intended to be used to heat interior spaces of homes or buildings to control ambient climate for human comfort. Do NOT use for process heat or any other purpose, pursuant to 40 CFR § 80.1460(g).”
(b) * * *
(7) Copies of all contracts which describe the fuel oil under contract with each end user.
(g)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to implement a regulatory amendment (Regulatory Amendment 12) to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared by the South Atlantic Fishery Management Council (Council). Regulatory Amendment 12 revises the optimum yield (OY) for golden tilefish in the South Atlantic exclusive economic zone (EEZ) and modifies the golden tilefish annual catch limit (ACL) to be equal to the OY. Regulatory Amendment 12 also revises the recreational accountability measures (AMs). This rule specifies the revised commercial and recreational ACLs for golden tilefish and the revised recreational AMs for golden tilefish. Additionally, through this final rule, NMFS announces the reopening of the golden tilefish commercial sector with a commercial trip limit of 300 lb (136 kg) for the 2012 fishing year. The intent of this rule is to modify management measures for golden tilefish in the commercial and recreational sectors in the South Atlantic based on new stock assessment analyses.
This rule is effective October 9, 2012 except regulations at § 622.49(b)(1)(ii) which will be effective November 8, 2012. The commercial
Electronic copies of Regulatory Amendment 12, which includes an environmental assessment, regulatory flexibility analysis, regulatory impact review, and fishery impact statement, may be obtained from the Southeast Regional Office Web site at
Karla Gore, Southeast Regional Office, NMFS, telephone: 727–824–5305, or email:
The snapper-grouper fishery of the South Atlantic is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
On July 20, 2012, NMFS published a proposed rule in the
This final rule increases the South Atlantic golden tilefish commercial ACL from 316,757 lb (143,679 kg), round weight, or 282,819 lb (128,285 kg), gutted weight, to 606,250 lb (274,990 kg), round weight, or 541,295 lb (245,527 kg), gutted weight, and increases the recreational ACL from 1,578 fish to 3,019 fish. The commercial and recreational ACL increases are based on the stock ACL increase in Regulatory Amendment 12 and the commercial and recreational allocations previously established in Amendment 17B to the FMP.
This final rule also modifies the AMs for the golden tilefish recreational sector of the snapper-grouper fishery. If recreational landings for golden tilefish reach, or are projected to reach the recreational ACL, NMFS will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year. Additionally, if the ACL is exceeded, then during the following fishing year, recreational landings will be monitored and, if necessary, the length of the following recreational fishing season will be reduced by the amount necessary to ensure recreational landings do not exceed the recreational ACL in the following fishing year.
Additionally, Regulatory Amendment 12 revises OY for golden tilefish and establishes the ACL equal to the OY and equal to the yield at 75 percent of the fishing mortality at MSY when the population is at equilibrium.
The golden tilefish fishing year extends from January 1 through December 31 each year. NMFS closed the commercial sector for golden tilefish on February 17, 2012, because the commercial ACL (equal to the commercial quota) was projected to have been reached by that date (77 FR 8750, February 15, 2012). However, due to the increased commercial ACL implemented through this final rule, NMFS has determined based on current information that additional golden tilefish may be harvested. Therefore, NMFS announces the reopening of the commercial sector for golden tilefish through this final rule. The commercial sector for golden tilefish will reopen at 12:01 a.m. on October 9, 2012. Regulations at § 622.44(c)(2)(ii) state that after 75 percent of the fishing year quota (commercial ACL) specified in § 622.42(e)(2) is reached, the trip limit for the commercial sector of golden tilefish is 300 lb (136 kg), gutted weight. NMFS has determined that 75 percent of the commercial quota (commercial ACL) has been landed and, thus, reopens the commercial sector for golden tilefish with the reduced trip limit of 300 lb (136 kg), gutted weight, for the remainder of the fishing year, or until the new ACL is reached or projected to be reached. If the new ACL is reached or projected to be reached before the end of the fishing year, NMFS will file a notification with the Office of the Federal Register to close the commercial sector for golden tilefish for the remainder of the fishing year.
NMFS closed the recreational sector for golden tilefish on June 4, 2012, because the recreational ACL was projected to have been reached by that date (77 FR 32914, June 4, 2012). NMFS has determined that the increased recreational ACL, implemented through this final rule, has been harvested. Therefore, NMFS is not reopening the recreational sector for golden tilefish for the current fishing year.
NMFS updates regulations at § 622.49(b)(1)(i) for the golden tilefish commercial sector AMs to clarify that the commercial quota is equal to the commercial ACL.
A total of 6 comments were received on the proposed rule for Regulatory Amendment 12, including comments from individuals and two fishing associations. Specific comments related to the actions contained in Regulatory Amendment 12 and the proposed rule, as well as NMFS' respective responses, are summarized below. Similar comments are grouped together.
Regulatory Amendment 12 and this rule do not modify the commercial trip limit or reopening procedures. Many of the comments related to the reopening of the commercial sector appear to be directed to Amendment 18B to the FMP, which is under review by the Secretary and not part of this rulemaking. For reference, Amendment 18B considers the establishment of a longline endorsement program, allocations of the quota to the longline and hook-and-line components of the commercial sector, and modifications to the golden tilefish trip limit, including a 500-lb (227-kg), gutted weight, trip limit for fishermen with a South Atlantic Unlimited Snapper-Grouper Permit who do not qualify for an endorsement.
The Regional Administrator, Southeast Region, NMFS, has determined that this final rule is necessary to more efficiently manage the golden tilefish component of the snapper-grouper fishery and is consistent with the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.
No public comments specific to the IRFA were received and, therefore, no public comments are addressed in this FRFA. No changes to the final rule were made in response to public comments.
NMFS agrees that the Council's choice of preferred alternatives would best achieve the Council's objectives while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities. The preamble to the final rule provides a statement and need for, and the objectives of this rule, and is not repeated here.
The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. This rule would not introduce any changes to current reporting, record-keeping, and other compliance requirements.
NMFS expects the rule to directly affect commercial fishers and for-hire operators. The Small Business Administration established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide. For for-hire vessels, other qualifiers apply and the annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).
A total of 142 vessels using hook-and-line gear and 38 vessels using longline gear landed golden tilefish in any one year during 2005–2010. Vessels using hook-and-line gear landed an annual average of about 27,000 lb (12,247 kg), gutted weight, of golden tilefish and 220,000 lb (99,790 kg), gutted weight, of other snapper-grouper species. Gross revenues of these vessels annually averaged $76,000 (2010 dollars) from golden tilefish and $567,000 (2010 dollars) from other snapper-grouper species. For 2005–2010, vessels using longline gear landed an annual average of about 298,000 lb (135,172 kg), gutted weight, of golden tilefish and 153,000 lb (69,400 kg), gutted weight, of other snapper-grouper species. For this period, their revenues annually averaged $802,000 from golden tilefish and $286,000 from other snapper-grouper species. On average, vessels using hook-and-line gear depended on other snapper-grouper species for a majority of their revenues while vessels using longline gear depended on golden tilefish as their major source of revenues. Some vessels using hook-and-line gear could be expected to be more dependent on golden tilefish as a major source of revenues. Similarly, some vessels using longline gear could be more dependent on other snapper-grouper species as a major source of revenues. These vessels, using hook-and-line or longline gear, are considered to comprise the universe of commercial vessels directly affected by actions in this regulatory amendment, including the ACL alternatives. With the ACL increase, other commercial vessels may enter or re-enter the golden tilefish portion of the snapper-grouper fishery, but it is not reasonably possible to determine how many vessels would do so.
Based on revenue information, all commercial vessels affected by this final rule can be considered small entities.
From 2005–2010, an annual average of 1,985 vessels had valid permits to operate in the snapper-grouper for-hire sector, of which 85 are estimated to have operated as headboats. The for-hire fleet consists of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The charterboat annual average gross revenue (2010 dollars) is estimated to range from approximately $62,000–$84,000 for Florida vessels, $73,000–$89,000 for North Carolina vessels, $68,000–$83,000 for Georgia vessels, and $32,000–$39,000 for South Carolina vessels. For headboats, the corresponding revenue estimates are $170,000–$362,000 for Florida vessels, and $149,000–$317,000 for vessels in the other states.
Based on these average revenue figures, all for-hire operations that would be affected by the rule can be considered small entities.
Some fleet activity,
NMFS expects the rule to directly affect all federally permitted commercial vessels harvesting golden tilefish and for-hire vessels that operate in the South Atlantic snapper-grouper fishery. All directly affected entities have been determined, for the purpose of this analysis, to be small entities. Therefore, NMFS determines that the rule would affect a substantial number of small entities.
Because NMFS determines that all entities expected to be affected by the rule are small entities, the issue of disproportional effects on small versus large entities does not arise in the present case.
This rule will not modify the commercial AM. Therefore, an ACL increase will result in revenue increases to the commercial vessels. It is also expected that such revenue increases would lead to profit increases, although the magnitude of profit increases cannot be estimated based on available information.
This rule will modify the current recreational post-season AM and add a new recreational in-season AM. The recreational sector has exceeded its ACL in recent years. In 2011, this sector exceeded its ACL by more than 500 percent. The ACL increase would not be enough to compensate for the expected overages in the recreational sector. Hence, with the in-season and post-season AM for the recreational sector, the for-hire entities may be expected to experience profit reductions even if the ACL is increased. The magnitude of such profit reduction cannot be estimated based on available information.
Because the commercial sector harvests substantially more golden tilefish than the recreational sector, receiving 97 percent of the combined ACL, NMFS expects that the profit increases to the commercial sector would cumulatively outweigh the profit decreases to the for-hire sector. Hence, NMFS expects that the ACL increase would yield positive net profit to small entities that participate in the golden tilefish component of the snapper-grouper fishery.
Reopening the 2012 fishing season for the commercial harvest of golden tilefish with a 300 lb (136 kg) trip limit would result in the immediate realization of some of the benefits of the rule.
The following discussion analyzes the alternatives that were not chosen as preferred by the Council. Five alternatives, including the preferred alternative, were considered for revising the ACL and OY for golden tilefish. The first alternative, the no action alternative, would maintain the existing ACL, which is equal to OY and the OY is equal to 75 percent of the fishing mortality at MSY. This is not a viable alternative because, based on updated biomass information, it would result in an ACL that is greater than the acceptable biological catch (ABC) recommended by the Council's SSC. The second alternative would set the ACL equal to the OY and the OY equal to the ABC. Due to its larger ACL, this alternative would result in larger short-term revenue and profit increases to commercial vessels than the preferred alternative. For the same reason, it would also result in better fishing opportunities and possibly higher profits to for-hire vessels than the preferred alternative. However, this alternative poses some risks, largely absent in the preferred alternative, of pushing the stock to an overfished level; fishery managers can overshoot the equilibrium biomass target, which could result in the population biomass dropping below both target and limit levels. In addition, this alternative provides for declining ACLs over time, which would tend to invite controversy, especially when the stock is abundant and not overfished. On the other hand, the preferred alternative would provide for stable harvest levels over time that, although lower than those of the second alternative, would still be substantially higher than current levels. The third alternative would set the ACL equal to the OY and the OY equal to 90 percent of the ABC. The fourth alternative would set the ACL equal to the OY and the OY equal to 80 percent of the ABC. These two other alternatives would provide for lower ACLs than the preferred alternative, and thus lower economic benefits as well.
Four alternatives, including the preferred alternative, were considered for revising the recreational AMs for golden tilefish. The first alternative, the no action alternative, is a post-season AM and employs a 3-year averaging method for determining ACL overages. Without an in-season AM, this alternative would not be as effective as the preferred alternative in preventing overages in the recreational sector. In addition, given the relatively large recreational harvests in recent years, the 3-year averaging method for determining ACL overages could potentially trigger the application of the AM even if no overages occurred in the current year. This would result in short-term reductions in profits and might also delay the benefits that would accrue from increasing the sector's ACL. The second alternative would specify a recreational sector AM trigger and includes two sub-alternatives, including the preferred sub-alternative. The first sub-alternative would not specify a recreational sector AM trigger, thus possibly limiting adverse effects on the profits of small entities. However, it would not provide for a measurable index in addressing the overages in the recreational sector. The third alternative would specify a recreational sector in-season AM and includes two sub-alternatives, including the preferred sub-alternative. The first sub-alternative would not specify a recreational sector in-season AM. This sub-alternative would likely result in higher profits to small entities than the preferred sub-alternative. However, it would not address the overages in the recreational sector that would eventually result in more restrictive regulations and larger reductions in the profits of small entities. The fourth alternative would specify a recreational sector post-season AM and includes two sub-alternatives, including the preferred sub-alternative. The first sub-alternative would specify a recreational sector post-season AM in terms of paybacks for the prior year's overages if golden tilefish were overfished. This sub-alternative would likely result in larger profit reductions to small entities than the preferred sub-alternative. Moreover, this sub-alternative would be unnecessary
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on the reopening of the commercial sector for golden tilefish in the South Atlantic EEZ, as notice and comment would be unnecessary and contrary to the public interest. Providing prior notice and the opportunity for public comment is unnecessary because the increased commercial and recreational ACLs for golden tilefish were subject to notice and comment as part of the proposed rule for Regulatory Amendment 12 (77 FR 42688); therefore, this waiver only covers the portion of the final rule that informs the public that additional commercial harvest is available and that the commercial sector will reopen. In addition, delaying implementation of this rulemaking to provide for prior notice and public comment is contrary to the public interest because it would reduce the likelihood of reopening the commercial sector for golden tilefish in the early fall months, when weather conditions are more favorable and fishing conditions are safer. Delaying the reopening to allow for public comment would therefore endanger the health and safety of the fishing fleets without providing any benefits to the public.
Three provisions in this final rule are exempt from the requirement to delay the effectiveness of a final rule by 30 days after publication in the
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders in the South Atlantic snapper-grouper fishery.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:
16 U.S.C. 1801
(e) * * *
(2)
(b) * * *
(1) * * *
(i)
(ii)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the directed herring fishery in Management Area 3, because 95 percent of the catch limit for that area has been caught. Effective 0001 hr, October 7, 2012, federally permitted vessels may not fish for, catch, possess, transfer, or land more than 2,000 lb (907.2 kg) per calendar day of Atlantic herring in or from Area 3 until January 1, 2013, when the 2013 allocation for Area 3 becomes available.
Effective 0001 hr local time, October 7, 2012, through December 31, 2012.
Lindsey Feldman, Fishery Management Specialist, (978) 675–2079.
Regulations governing the Atlantic herring (herring) fishery are found at 50 CFR part 648. The regulations require annual specification of the overfishing
Section 648.201 requires the Administrator, Northeast Region, NMFS (Regional Administrator), to monitor the herring fishery in each of the four management areas designated in the Fishery Management Plan for the herring fishery and, based on dealer reports, state data, and other available information, to determine when the harvest of herring is projected to reach 95 percent of the management area sub-ACL. When such a determination is made, NMFS must publish notification in the
The Regional Administrator has determined, based on dealer reports and other available information that 95 percent of the total herring sub-ACL allocated to Area 3 for 2012 is projected to be harvested on October 7, 2012. Therefore, effective 0001 hr local time, October 7, 2012, federally permitted vessels may not fish for, catch, possess, transfer, or land more than 2,000 lb (907.2 kg) of herring per trip (and landing herring no more than once per calendar day) in or from Area 3 through December 31, 2012. Vessels may transit through Area 3 with more than 2,000 lb (907.2 kg) of herring on board, provided such herring was not caught in Area 3 and provided all fishing gear aboard is stowed and not available for immediate use as stated in § 648.23(b). Effective 0001 hr, October 7, 2012, federally permitted dealers are also advised that they may not purchase herring from federally permitted herring vessels that harvest more than 2,000 lb (907.2 kg) of herring from Area 3 through 2400 hr local time, December 31, 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 herring fishery for Management Area 3 until January 1, 2013, under current regulations. The regulations at § 648.201(a) require such action to ensure that herring vessels do not exceed the 2012 sub-ACL allocated to Area 3. The herring fishery opened for the 2012 fishing year on January 1, 2012. Data indicating the herring fleet will have landed at least 95 percent of the 2012 sub-ACL allocated to Area 3 have only recently become available. If implementation of this closure is delayed to solicit prior public comment, the sub-ACL for Area 3 for this fishing year can be exceeded, thereby undermining the conservation objectives of the FMP and requiring any excess to be subtracted from the Area 3 sub-ACL for the fishing year following the total catch determination. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of the 2012 Atka mackerel incidental catch allowance (ICA) for the Bering Sea subarea and Eastern Aleutian district (BS/EAI) of to the Amendment 80 cooperatives in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the 2012 total allowable catch of Atka mackerel to be fully harvested.
Effective October 3, 2012, through 2400 hrs, Alaska local time (A.l.t.), December 31, 2012.
Steve Whitney, 907–586–7269.
NMFS manages the groundfish fishery in the BSAI 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 Atka mackerel ICA for the BS/EAI is 1,000 metric tons (mt) and 2012 Atka mackerel total allowable catch allocated to the Amendment 80 cooperative is 29,892 mt as established by the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012).
The Administrator, Alaska Region, NMFS, has determined that 570 mt of the Atka mackerel ICA for the BS/EAI will not be harvested. Therefore, in accordance with § 679.91(f), NMFS reallocates 570 mt of Atka mackerel from the BS/EAI ICA to the Amendment 80 cooperatives in the BSAI. In accordance with § 679.91(f), NMFS will reissue cooperative quota permits for the reallocated Atka mackerel following the procedures set forth in § 679.91(f)(3).
The harvest specifications for Atka mackerel included in the harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012) are revised as follows: 430 mt of Atka mackerel for the BS/EAI ICA and 30,463 mt of Atka mackerel for the Amendment 80 cooperatives in the BS/EAI. Table 4 is correctly revised and republished in its entirety as follows:
This will enhance the socioeconomic well-being of harvesters dependent upon Atka mackerel in this area. The Regional Administrator considered the following factors in reaching this decision: (1) The current catch of Atka mackerel ICA in the BS/EAI, (2) the harvest capacity and stated intent on future harvesting patterns of the Amendment 80 cooperative that participates in this BS/EAI fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is 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 reallocation of Atka mackerel from the BS/EAI ICA to the Amendment 80 cooperatives in the BSAI. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. 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 as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 28, 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.
This action is required by § 679.91 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Turbomeca S.A. Arriel 2D turboshaft engines. This proposed AD was prompted by a low fuel pressure event caused by a deterioration and a loss of the low-pressure drive function within the hydro-mechanical metering unit (HMU). This proposed AD would require replacing the HMU at a reduced life. We are proposing this AD to prevent an uncommanded in-flight shutdown of the engine, and possible loss of the helicopter.
We must receive comments on this proposed AD by December 10, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Turbomeca, 40220 Tarnos, France; phone: 33 (0)5 59 74 40 00; telex: 570 042; fax: 33 (0)5 59 74 45 15. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
You may examine the AD docket on the Internet at
Frederick Zink, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2012–0141, dated July 31, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During an Arriel 2D endurance test, the illumination of the low fuel pressure warning light was observed. The investigation of the high pressure/low pressure (HP/LP) pump assembly within the hydro-mechanical metering unit (HMU), removed following this occurrence, revealed a deterioration and a loss of the LP pump drive function.
This condition, if not detected and corrected, could lead to an uncommanded engine in-flight shut down.
We are issuing this proposed AD to prevent an uncommanded in-flight shutdown of the engine, and possible loss of the helicopter. You may obtain further information by examining the MCAI in the AD docket.
Turbomeca S.A. has issued Alert Mandatory Service Bulletin No. A292 73 2847, Version A, dated May 29, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of France and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would require replacing the HMU before the HMU exceeds 800 operating hours since new; or within 800 operating hours since last replacement of the low-pressure pump spindle wheel assembly, high-pressure
Based on the service information, we estimate that this proposed AD would affect about 27 engines installed on helicopters of U.S. registry. We also estimate that it would take about 0.7 work-hour per engine to comply with this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $14,400 per engine. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $390,407.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have 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.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by December 10, 2012.
None.
This AD applies to all Turbomeca S.A. Arriel 2D turboshaft engines.
This AD was prompted by a low fuel pressure event caused by a deterioration and a loss of the low-pressure drive function within the hydro-mechanical metering unit (HMU). We are issuing this AD to prevent an uncommanded in-flight shutdown of the engine, and possible loss of the helicopter.
Unless already done, replace the HMU with an HMU eligible for installation:
(1) Before the HMU exceeds 800 operating hours since new; or
(2) Within 800 operating hours since last replacement of the low-pressure pump spindle wheel assembly, high-pressure pump complete sleeve, bearings/pinions (matched assembly), and sleeve assembly.
After the effective date of this AD, do not install any HMU onto any engine, or install any engine onto any helicopter, unless in compliance with the requirements of paragraph (e) of this AD.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Frederick Zink, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; email:
(2) Refer to European Aviation Safety Agency AD No. 2012–0141, dated July 31, 2012, and Turbomeca S.A. Alert Mandatory Service Bulletin No. A292 73 2847, Version A, dated May 29, 2012, for related information.
(3) For service information identified in this AD, contact Turbomeca, 40220 Tarnos, France; phone: 33 (0)5 59 74 40 00; telex: 570 042; fax: 33 (0)5 59 74 45 15. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
None.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace at Savoonga Airport, AK, to accommodate aircraft using new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Savoonga Airport. The FAA is proposing this action to enhance the safety and management of aircraft operations at the airport.
Comments must be received on or before November 23, 2012.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366–9826. You must identify FAA Docket No. FAA–2012–0322; Airspace
Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4517.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA 2012–0323 and Airspace Docket No. 12–AAL–4) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2012–0323 and Airspace Docket No. 12–AAL–4”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface at Savoonga Airport, Savoonga, AK. Controlled airspace is necessary to accommodate aircraft using the new RNAV (GPS) standard instrument approach procedures at Savoonga Airport, and would enhance the safety and management of instrument flight rules operations at the airport.
Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled airspace at Savoonga Airport, Savoonga, AK.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9W, Airspace and Designations and Reporting Points, dated August 8, 2012, and effective September 15, 2012, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Savoonga Airport, and within 4 miles each side of the 059° bearing of the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace at Astoria Regional Airport, Astoria, OR. Controlled airspace is necessary to accommodate aircraft using Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Astoria Regional Airport. The FAA is proposing this action to enhance the safety and management of aircraft operations at the airport.
Comments must be received on or before November 23, 2012.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366–9826. You must identify FAA Docket No. FAA–2012–0853; Airspace Docket No. 12–ANM–23, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4537.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA 2012–0853 and Airspace Docket No. 12–ANM–23) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2012–0853 and Airspace Docket No. 12–ANM–23”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Astoria Regional Airport, Astoria, OR. Controlled airspace is necessary to accommodate aircraft using the RNAV (GPS) standard instrument approach procedures at Astoria Regional Airport and would enhance the safety and management of aircraft operations at the airport.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A,
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9W, Airspace Designations and Reporting Points, dated August 8, 2012, and effective September 15, 2012 is amended as follows:
That airspace extending from 700 feet above the surface within a 7-mile radius of Astoria Regional Airport; and within 6 miles north and 8.3 miles south of the Astoria Regional Airport 268° bearing extending from the 7-mile radius to 17.5 miles west of Astoria Regional Airport, excluding the portion within a 1.8-mile radius of Seaside Municipal Airport; and within 4 miles northeast and 8.3 miles southwest of the Astoria Regional Airport 326° bearing extending from the 7-mile radius to 21.4 miles northwest of Astoria Regional Airport; and within 4 miles each side of the Astoria Regional Airport 096° bearing extending from the 7-mile radius to 12 miles east of Astoria Regional Airport; and within 8.3 miles north and 4 miles south of the Astoria Regional Airport 096° bearing from 12 miles east, to 28.3 miles east of Astoria Regional Airport; and within a 15.9-mile radius of Astoria Regional Airport extending clockwise from the 326° bearing to the 347° bearing of the airport; and within a 23.1-mile radius of Astoria Regional Airport extending clockwise from the 347° bearing to the 039° bearing of the airport extending from the 15.9-mile radius to a 23.1-mile radius of Astoria Regional Airport extending clockwise from the airport 039° bearing to the airport 185° bearing.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service petition to initiate an informal rulemaking proceeding to consider changes in analytical principles (Proposals Eight and Nine) used in periodic reporting. This notice provides an opportunity for the public to comment on the potential changes.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6824.
On September 28, 2012, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate an informal rulemaking proceeding to consider changes in the analytical methods approved for use in periodic reporting.
The Postal Service states that the proposed changes are solely mechanical in nature because the number of machinable and irregular price categories, as well as the presort level and destination entry point for each price category, have not changed as a result of the commercial Standard Mail parcel price categories being moved to the competitive products list.
The first proposed modification removes the ability to isolate (via toggle switches) the effect of individual changes proposed in Docket No. RM2012–2.
The second modification corrects what the Postal Service describes as “cell referencing errors” in the Periodicals model.
The third modification accounts for more sources of rejects and adjusts some reject rates to make them consistent with Management Operating Data System (MODS) estimates.
The fourth modification accounts for changes in allied operations resulting from the introduction of the AFSM 100 and FSS. The modifications only apply to the Periodicals model.
The fifth modification creates class-specific FSS coverage factors. Each coverage factor is the ratio of MODS FSS total pieces fed (by class) to volume as reported in the Revenue, Pieces, and Weight report.
The sixth modification removes the costs of sorting mail to post office boxes from all three flats models and designates these costs as “non-modeled.”
The seventh modification updates the estimates of the average number of cross-dock movements by container type by entry facility for Periodicals. The update relies on Mail.dat files by publication and a Postal Service database of individual transportation routes. The Postal Service states that the new estimates are generally similar to those provided in Docket No. R2006–1.
The eighth modification uses the results of the seventh modification to simplify the development of costs by container type by entry facility for Periodicals. According to the Postal Service, simply having the number of facilities that a container passes through before it reaches the destination facility is sufficient to calculate the number of times the average container incurs each process.
1. The Petition of the United States Postal Service Requesting Initiation of a Proceeding to Consider Proposed Changes in Analytical Principles (Proposals Eight and Nine), filed September 28, 2012, is granted.
2. The Commission establishes Docket No. RM2012–8 to consider the matters raised by the Postal Service's Petition.
3. Interested persons may submit comments on Proposals Eight and Nine no later than October 29, 2012.
4. Reply comments are due no later than November 8, 2012.
5. Lawrence Fenster is appointed to serve as the Public Representative to represent the interests of the general public in this proceeding.
6. The Secretary shall arrange for publication of this notice in the
By the Commission.
Environmental Protection Agency (“EPA”).
Proposed rule—Consistency Update.
EPA is proposing to update a portion of the Outer Continental Shelf (“OCS”) Air Regulations. Requirements applying to OCS sources located within 25 miles of States' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (“COA”), as mandated by section 328(a)(1) of the Clean Air Act, as amended in 1990 (“the Act”). The portions of the OCS air regulations that are being updated pertain to the requirements for OCS sources by the Ventura County Air Pollution Control District (Ventura County APCD). The intended effect of approving the OCS requirements for the Ventura County APCD is to regulate emissions from OCS sources in accordance with the requirements onshore. The change to the existing requirements discussed below is proposed to be incorporated by reference into the Code of Federal Regulations and is listed in the appendix to the OCS air regulations.
Comments must be received on or before November 8, 2012.
Submit comments, identified by docket number OAR–2004–0091, by one of the following methods:
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Cynthia Allen, Air Division (Air-4), U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947–4120,
On September 4, 1992, EPA promulgated 40 CFR part 55,
Pursuant to § 55.12 of the OCS rule, consistency reviews will occur (1) at least annually; (2) upon receipt of a Notice of Intent under § 55.4; or (3) when a state or local agency submits a rule to EPA to be considered for incorporation by reference in part 55. This proposed action is being taken in response to requirements submitted by the Ventura County APCD. Public comments received in writing within 30 days of publication of this document will be considered by EPA before publishing a final rule. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.
In updating 40 CFR part 55, EPA reviewed the rules submitted for inclusion in part 55 to ensure that they are rationally related to the attainment or maintenance of Federal or State ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. 40 CFR 55.12 (e). In addition, EPA has excluded administrative or procedural rules,
1. After review of the requirements submitted by the Ventura County APCD against the criteria set forth above and in 40 CFR part 55, EPA is proposing to make the following District requirements applicable to OCS sources:
The District submitted the following rule which is being repealed, for removal from Part 55. We are proposing to repeal this rule from part 55:
The District also submitted the following new rule which is not currently in effect on the OCS, for incorporation into Part 55. We are proposing to incorporate this rule into part 55:
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (“OMB”) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB Review. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA.
The OMB has approved the information collection requirements contained in 40 CFR part 55, and by extension this update to the rules, under the provisions of the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
These rules will not have a significant economic impact on a substantial number of small entities. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have had a significant economic impact on a substantial number of small entities. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
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 the UMRA, EPA generally must prepare 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 of more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA 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 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the 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. Today's proposed rules contain no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or to the private sector in any one year. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA.
Executive Orders 13132, entitled “Federalism” (64 FR 43255 (August 10, 1999)), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. These rules do not amend the existing provisions within 40 CFR part 55 enabling delegation of OCS regulations to a COA, and this rule does not require the COA to implement the OCS rules. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comments on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule 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 and thus does not have “tribal implications,” within the meaning of Executive Order 13175. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. In addition, this rule does not impose substantial direct compliance costs tribal governments, nor preempt tribal law. Consultation with Indian tribes is therefore not required under Executive Order 13175. Nonetheless, in the spirit of Executive Order 13175 and consistent with EPA policy to promote communications between EPA and tribes, EPA specifically solicits comments on this proposed rule from tribal officials.
Executive Order 13045: “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885 (April 23, 1997)), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. In addition, the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportional risk to children.
This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (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 No. 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable laws or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decided not to use available and applicable voluntary consensus standards.
As discussed above, these rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act,
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this proposed action. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements.
Although EPA lacks authority to modify today's regulatory decision on the basis of environmental justice considerations, EPA nevertheless explored this issue and found the following. This action, namely, updating the OCS rules to make them consistent with current COA requirements, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Environmental justice considerations may be appropriate to consider in the context of a specific OCS permit application.
Environmental protection, Administrative practice and procedures, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer Continental Shelf, Ozone, Particulate matter, Permits, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons set out in the preamble, title 40 of the Code of Federal Regulations, part 55, is proposed to be amended as follows:
1. The authority citation for part 55 continues to read as follows:
Section 328 of the Clean Air Act (42 U.S.C. 7401
2. Section 55.14 is amended by revising paragraphs (e)(3)(ii)(H) to read as follows:
(e) * * *
(3) * * *
(ii) * * *
(H)
3. Appendix A to part 55 is amended by revising paragraphs (b)(8) under the heading “California” to read as follows:
(8) The following requirements are contained in
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to amend the definition of heating oil in the Renewable Fuel Standard (RFS) program under section 211(o) of the Clean Air Act. This amendment would expand the scope of renewable fuels that can generate Renewable Identification Numbers (RINs) as heating oil to include fuel oil produced from qualifying renewable biomass that would be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. Fuel oils used to generate process heat, power, or other functions would not be included in the amended definition. Producers or importers of fuel oil that meets the amended definition of heating oil would be allowed to generate RINs, provided that the fuel oil meets the other requirements specified in the RFS regulations. This proposed amendment would not modify or limit fuel included in the current definition of heating oil. We are also proposing amendments to the diesel sulfur program to provide additional flexibility for transmix processors that produce locomotive and marine diesel fuel. Specifically, we are proposing to reinstate an allowance for transmix processors to produce 500 parts per million (ppm) sulfur diesel fuel for use in older technology locomotive and marine diesel outside of the Northeast Mid-Atlantic Area. We are also requesting comment on extending this allowance to outside of the Northeast Mid-Atlantic Area. These proposed amendments to the diesel transmix provisions are expected to result in reduced compliance costs for transmix processors and users of locomotive and marine diesel fuel while having a neutral or positive environmental impact. EPA is also proposing to amend the fuel marker requirements for 500 ppm sulfur locomotive and marine (LM) diesel fuel to address an oversight in the original rulemaking where the regulations failed to incorporate provisions described in the rulemaking preamble to allow for
Written comments must be received on or before November 8, 2012, or 30 days from the date of the public hearing, if a public hearing is requested. A request for a public hearing must be received by October 24, 2012. If a public hearing is requested, we will publish a notice in the
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2012–0223, by the following methods:
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Kristien Knapp, Office of Transportation and Air Quality, Mail Code: 6405J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 20460; telephone number: (202) 343–9949; fax number: (202) 343–2800; email address:
EPA is proposing to amend provisions in the renewable fuel standard (RFS) and diesel sulfur fuel programs. The RFS amendment would change the definition of home heating oil, and the diesel sulfur amendments would provide additional flexibility for transmix processors who produce locomotive and marine diesel fuel, and allow solvent yellow 124 marker to transition out of the distribution system. EPA is proposing these amendments under section 211 of the Clean Air Act.
EPA proposes to amend the definition of heating oil in 40 CFR 80.1401 in the renewable fuel standard (“RFS” or “RFS2”) program promulgated under section 211(o) of the Clean Air Act (CAA). This amendment will expand the scope of renewable fuels that can generate Renewable Identification Numbers (“RINs”) as “home heating oil” to include fuel oil that will be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. This rule would allow producers or importers of fuel oil that meets the amended definition of heating oil to generate RINs, provided that other requirements specified in the regulations are met. Fuel oils used to generate process heat, power, or other functions would not be approved for RIN generation under the amended definition of heating oil. The proposed amendment would not modify, limit, or change fuel included in the current definition of heating oil at 40 CFR 80.2(ccc).
The proposed diesel transmix amendments would reinstate an allowance for transmix processors to produce 500 ppm sulfur diesel fuel for use in older technology locomotive and marine diesel outside of the Northeast Mid-Atlantic Area after 2014. EPA's ocean-going vessels rule forbade this allowance beginning 2014, because a new stream of diesel fuel for ocean-going vessels, containing up to 1000 ppm sulfur, was introduced at that time, which we believed would provide a suitable outlet for transmix distillate product. Transmix processors stated that they were not aware of the changes to the 500-ppm LM transmix provisions until after they were finalized, and that the ocean-going vessels market would not be a viable outlet for their distillate product. Based on additional input that we received from transmix processors and other stakeholders in the fuel distribution system during our consideration of the petition, EPA believed that it would be appropriate to extend the 500-ppm diesel transmix flexibility beyond 2014. EPA finalized a settlement agreement and this DFR and NPRM are in accord with the settlement agreement. Our analysis indicates that extending this flexibility beyond 2014 will have a neutral or net beneficial effect on overall emissions.
The proposed yellow marker amendments address an oversight in EPA's original nonroad diesel rulemaking. In that rulemaking, the regulations failed to incorporate provisions described in the rulemaking
Specifically, the regulations as currently written do not provide any transition time for unmarked LM fuel delivered from a truck loading rack beginning June 1, 2012 to work its way through the fuel distribution system downstream of the truck loading rack. The proposed yellow marker amendments will allow 500 ppm LM diesel fuel at any point in the fuel distribution and end use system to contain more than 0.10 milligrams per liter of SY 124 through November 30, 2012. This regulatory change would allow marked LM diesel fuel to transition normally through the LM fuel distribution and use system. Today's proposed rule would also amend the regulation to clarify the transition of the solvent yellow 124 marker out of heating oil beginning June 1, 2014. After December 1, 2014, EPA proposed to no longer have any requirements with respect to the use of the SY 124 marker.
These three sets of proposed amendments attempt to provide new opportunities for RIN generation under the RFS program and necessary flexibilities and transition periods for those affected by EPA's transmix and marker requirements. Therefore, EPA believes that these amendments would impose no new direct costs or burdens on regulated entities beyond the minimal costs associated with reporting and recordkeeping requirements. At the same time, EPA does not believe that any of these amendments will adversely impact emissions.
This document proposes to amend the definition of heating oil in 40 CFR 80.1401 in the renewable fuel standard (RFS) program that was promulgated under section 211(o) of the Clean Air Act. This amendment would expand the scope of fuels that can generate RINs as home heating oil to include fuel oil that would be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. This document also proposes amendments to the diesel sulfur program to provide additional flexibility to transmix processors to produce locomotive and marine (LM) diesel fuel. Specifically, we are proposing to reinstate an allowance for transmix processors to produce 500 ppm sulfur diesel fuel for use in older technology locomotive and marine diesel outside of the Northeast Mid-Atlantic Area (“NEMA”). We are also requesting comment on extending this allowance to the NEMA. These proposed amendments to the diesel transmix provisions are expected to result in reduced compliance costs for transmix processors and users of LM diesel fuel while having a neutral or positive environmental impact. Lastly, this document proposes to amend the fuel marker requirements for 500 ppm sulfur locomotive and marine (LM) diesel fuel to address an oversight in the original rulemaking where the regulations failed to incorporate provisions described in the rulemaking preamble to allow for solvent yellow 124 marker to transition out of the distribution system.
We are publishing a separate document that will serve as a direct final rule in the “Rules and Regulations” section of this
We will address all public comments in any subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the
Entities potentially affected by this action include those involved with the production, distribution and sale of transportation fuels, including gasoline and diesel fuel, or renewable fuels such as ethanol and biodiesel, as well as those involved with the production, distribution and sale of other fuel oils that are not transportation fuel. Regulated categories and entities affected by this action include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria of Part 80, subparts D, E and F of title 40 of the Code of Federal Regulations. If you have any question regarding applicability of this action to a particular entity, consult the person in the preceding
A.
B.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
C.
EPA is issuing this proposed rule to amend the definition of heating oil in 40 CFR 80.1401 in the renewable fuel standard (“RFS” or “RFS2”) program promulgated under section 211(o) of the Clean Air Act (CAA).
The RFS2 program requires the production and use of renewable fuel to replace or reduce the quantity of fossil fuel present in transportation fuel. Under EPA's RFS program this is accomplished by providing for the generation of RINs by producers or importers of qualified renewable fuel. RINs are transferred to the producers or importers of gasoline and diesel transportation fuel who then use the RINs to demonstrate compliance with their renewable fuel volume obligations. RINs also serve the function of credits under the RFS program.
Congress provided that EPA could also establish provisions for the generation of credits by producers of certain renewable fuel that was not used in transportation fuel, called “additional renewable fuel.”
EPA addressed the provision for additional renewable fuels in the RFS2 rulemaking, specifically addressing the category of “home heating oil.” EPA determined that this term was ambiguous, and defined it by incorporating the existing definition of heating oil at 40 CFR 80.2(ccc). EPA stated that:
EISA uses the term “home heating oil” in the definition of “additional renewable fuel.” The statute does not clarify whether the term should be interpreted to refer only to heating oil actually used in homes, or to all fuel of a type that can be used in homes. We note that the term `home heating oil' is typically used in industry in the latter manner, to refer to a type of fuel, rather than a particular use of it, and the term is typically used interchangeably in industry with heating oil, heating fuel, home heating fuel, and other terms depending on the region and market. We believe this broad interpretation based on typical industry usage best serves the goals and purposes of the statute. If EPA interpreted the term to apply only to heating oil actually used in homes, we would necessarily require tracking of individual gallons from production through ultimate [use] in homes in order to determine eligibility of the fuel for RINs. Given the fungible nature of the oil delivery market, this would likely be sufficiently difficult and potentially expensive so as to discourage the generation of RINs for renewable fuels used as home heating oil. This problem would be similar to that which arose under RFS1 for certain renewable fuels (in particular biodiesel) that were produced for the highway diesel market but were also suitable for other markets such as heating oil and non-road applications where it was unclear at the time of fuel production (when RINs are typically generated under the RFS program) whether the fuel would ultimately be eligible to generate RINs. Congress eliminated the complexity with regards to non-road applications in RFS2 by making all fuels used in both motor vehicle and nonroad applications subject to the renewable fuel standard program. We believe it best to interpret the Act so as to also avoid this type of complexity in the heating oil context. Thus, under today's regulations, RINs may be generated for renewable fuel used as `heating oil,' as defined in existing EPA regulations at § 80.2(ccc). In addition to simplifying implementation and administration of the Act, this interpretation will best realize the intent of EISA to reduce or replace the use of fossil fuels.
The existing definition of heating oil at 40 CFR § 80.2(ccc) means “any #1, #2,
EPA has considered this issue further and is proposing to revise the definition of heating oil in the RFS program to expand the scope of fuels that can generate RINs as heating oil. EPA is proposing to revise the definition such that RINs also may be generated by renewable fuel that is fuel oil and is used to heat interior spaces of homes or buildings to control ambient climate for human comfort. This would not include fuel oils used to generate process heat, power, or other functions. The fuel oil would be used to generate heat to warm buildings or other facilities where people live, work, recreate, or conduct other activities. The fuel oil would only be used in heating applications, where the sole purpose of the fuel's use is for heating and not for any other combined use such as process energy use. We are proposing to amend the existing definition of heating oil in 40 CFR § 80.1401 to include fuel oils that are used in this way. This is in addition to the fuel oils currently included in the definition of heating oil at 40 CFR § 80.2(ccc), and would not modify or limit the fuel included in the current definition.
EPA believes this expansion of the scope of the home heating oil provision is appropriate and authorized under CAA section 211(o). As EPA described in the RFS2 final rule, Congress did not define the term “home heating oil,” and it does not have a fixed or definite commercial meaning. In the RFS2 final rulemaking, EPA focused on whether the provision was limited to heating oil actually used in homes. EPA noted that the term home heating oil is usually used in the industry to refer to a type of fuel, and not to one specific use for the fuel. Given this more specific usage of the term, and the practical barriers that would arise if the term was defined as fuel actually used to heat homes, EPA defined the scope of home heating oil by identifying those types of fuel oils that are typically used to heat homes. EPA determined this was a reasonable interpretation of an ambiguous statutory provision that simplified implementation and administration of the Act and promoted achievement of the goals of the RFS program.
In the RFS2 rulemaking, EPA focused on the kinds of fuel oils that can be used to heat homes. The expansion of the definition proposed in this rulemaking would address two types of fuel oils not included in the current definition of heating oil. First, the proposed definition would include additional fuel oils that are actually used to heat homes, even if they do not meet the current definition of heating oil. This is clearly within the scope of the statutory provision for home heating oil.
Second, the proposed definition would include fuel oils that are used to heat facilities other than homes to control ambient climate for human comfort. Under the current definition of heating oil, a fuel oil meets the definition based on its physical properties and its use in furnaces, boilers, stationary diesel engines, and similar applications, not whether it is actually used to heat a home. The basic decision made in the RFS2 final rulemaking was to allow RIN generation for the group of fuel oils that are typically used for home heating purposes. Under the current definition the relationship of the fuel oil to heating homes is that the fuel oil is of the type that is typically used for and can be used for that purpose.
In the proposed amended definition, qualifying fuel oils would be used for heating places where people live, work, or recreate, and not just their homes. It focuses more on what is getting heated—people—and not where the people are located. EPA believes this is a reasonable interpretation of the phrase “home heating oil,” while recognizing that it is not an obvious interpretation. This interpretation recognizes the ambiguity of the phrase used by Congress, which is not defined and does not have a clear and definite commercial meaning. It gives reasonable meaning to the term home heating oil, by limiting the additional fuel oils to fuel oils when used for heating of facilities that people will occupy, and excluding fuel oils when used for other purposes such as generation of energy used in the manufacture of products. It also focuses on the aspect of home that is important here—the heating of people—recognizing that EPA has already determined that fuel oil can be included in the scope of home heating oil even if it is not actually used to heat a home. This interpretation will also promote the purposes of the EISA and the RFS program. It will promote the purposes of the EISA in that it will increase the production and use of renewable fuels by introducing new sources of fuel producers to the RFS program. It will specifically promote the RFS programmatic goals by facilitating the generation of RINs for renewable fuels that reduce emissions of greenhouse gases compared to fossil fuels. For example, EPA has received information from Envergent Technologies (an alliance of Ensyn and Honeywell) that such an expanded definition of heating oil would result in nearly immediate production of 3.5 million gallons from their existing facilities, with an additional projected production of up to 45 million gallons per year within 24 months following regulatory action. Based on this information from Envergent Technologies, application of the expanded definition of heating oil to the entire industry would result in the production of many more million additional gallons of renewable fuel. Although EPA believes the expanded definition in the regulations of “heating oil” would be a reasonable interpretation of the intent of Congress to allow additional renewable fuel to count towards the volume mandates if it is produced from renewable biomass and is used to replace or reduce the quantity of fossil fuel present in home heating oil, EPA invites comment on this interpretation.
For the text of the proposed regulatory changes please see the direct final rule, located in the “Rules and Regulations” section of this
EPA has also evaluated whether any revisions would need to be made to Table 1 to 40 CFR 80.1426 that lists the applicable D codes for each fuel pathway for use in generating RINs in the RFS2 regulations in light of the additional fuel oils included in the expanded definition of heating oil. As discussed below, EPA has determined that the applicable D code entries for heating oil in Table 1 to 40 CFR 80.1426 would continue to be appropriate and would not need to be revised in light of the expanded definition of heating oil.
Under the RFS program, EPA must assess lifecycle greenhouse gas (GHG) emissions to determine which fuel pathways meet the GHG reduction thresholds for the four required renewable fuel categories. The RFS program requires a 20% reduction in lifecycle GHG emissions for conventional renewable fuel (except for grandfathered facilities and volumes), a 50% reduction for biomass-based diesel or advanced biofuel, and a 60% reduction for cellulosic biofuel. For the final RFS2 rule, EPA assessed the lifecycle greenhouse gas emissions of multiple renewable fuel pathways and classified pathways based on these GHG thresholds, as compared to the EISA statutory baseline.
The fuel pathways consist of fuel type, feedstock, and production process requirements. GHG emissions are assessed at all points throughout the lifecycle pathway. For instance, emissions associated with sowing and harvesting of feedstocks and in the production, distribution and use of the renewable fuel are examples of what are accounted for in the GHG assessment. A full accounting of emissions is then compared with the petroleum baseline emissions for the transportation fuel being replaced. The lifecycle GHG emissions determination is one factor used to determine compliance with the regulations.
There are currently several fuel pathways that list heating oil as a fuel type with various types of feedstock and production processes used, qualifying the heating oil pathways as either biomass-based diesel, advanced, or cellulosic. The determinations for these different pathways were based on the current definition of heating oil. The pathways also include several types of distillate product including diesel fuel, jet fuel and heating oil.
The lifecycle calculations and threshold determinations are based on the GHG emissions associated with production of the fuel and processing of the feedstock. Converting biomass feedstocks such as triglycerides (if oils are used as feedstock) or hemi-cellulose, cellulose, lignin, starches, etc. (if solid biomass feedstock is used) into heating oil products and can be accomplished through either a biochemical or thermochemical process converting those molecules into a fuel product. The existing heating oil pathways were based on the current definition of the fuel, and were based on a certain level of processing to produce #1, #2, or a non-petroleum diesel blend and the related energy use and GHG emissions that were part of the lifecycle determination for those fuel pathways.
The main difference between the current definition of heating oil, which refers to #1, #2, or a non-petroleum diesel blend, and the expanded definition that is proposed in this rulemaking is that the expanded definition would include heavier types of fuel oil with larger molecules. Based on the type of conversion process, producing these heavier fuel oil products versus the #1, #2, or a non-petroleum diesel blend would affect the amount of energy used and therefore the GHG emissions from the process. There are two main paths for producing a fuel oil product from biomass. In one the biomass is converted into a biocrude which is further refined into lighter products. In this case producing a heavier fuel oil product would require less processing energy and have lower GHG emissions than converting the same feedstock into a #1, #2, or non-petroleum diesel blend.
In the other type of process the compounds in the biomass are changed into a set of intermediary products, such as hydrogen (H) and carbon monoxide (CO).
Based on these considerations, EPA believes the GHG emissions associated with producing the fuel oil included in the expanded definition would be the same or lower than the GHG emissions associated with producing #1, #2, or non-petroleum diesel blend. Therefore, EPA believes the prior life cycle analysis for heating oil would support applying the existing pathways for fuel oil in the RFS2 regulations to the expanded definition of heating oil. All of the pathways currently applicable to heating oil under Table 1 to 40 CFR 80.1426 would apply to the expanded definition of heating oil. EPA invites comments whether there are any other factors to consider in addition to the reasons discussed above for extending the lifecycle analysis already conducted for heating oil in the final rulemaking for fuel oils under the expanded definition of heating oil.
For the text of the proposed regulatory changes please see the direct final rule, located in the “Rules and Regulations” section of this
An important issue to address is how to implement such an expanded definition. As EPA recognized in the RFS2 rulemaking, fuel oils end up being used in a variety of different uses, where the fuel producer may have little knowledge at the time of production as to eventual use of the fuel. This is especially the case where the fuel oil is distributed in a fungible distribution system. EPA addressed this in the RSF2 rulemaking by defining home heating oil as a type of fuel with certain characteristics, irrespective of where it was used. This approach avoided the need to track the fuel to its actual use,
The proposed expansion of the definition raises this same issue but in a more significant way. While the proposed expansion of the definition includes some limited physical characteristics that fuel oils would need to meet in order to qualify for generating RINs, it does not provide sufficient specificity to differentiate between those fuels oils used to heat buildings for climate control for human comfort and those used to generate process heat or other purposes. Therefore, for eligible fuel oils other than those qualifying under the existing definition in 40 CFR 80.2(ccc), EPA is proposing that the renewable fuel producer or importer have adequate documentation to demonstrate that the fuel oil volume for which RINs were generated was used to heat buildings for climate control for human comfort and meets the expanded definition of heating oil in order to generate RINs.
EPA recognizes that under the current definition of heating oil no tracking or other documentation of end use is required, and some heating oils that meet the current definition could end up being used for other purposes. However, in all cases the heating oil under the current definition has to have the physical or other characteristics that tie it to the type of fuel oil used to heat homes. In addition, because these fuel oils would qualify to generate RINs under the RFS program, it will likely lead to their use for heating of buildings, and not for generation of process heat. For the fuel oils included in the expanded definition, the tie to home heating oil would not be the physical characteristics of the fuel oil but instead its actual usage for heating for the purposes of climate control for human comfort.
In order to verify that the fuel oils are actually used to generate heat for climate control purposes, EPA is proposing the following registration, recordkeeping, product transfer document (PTD) and reporting requirements. These proposed requirements would not apply to fuels qualifying under existing 40 CFR 80.2(ccc) of the regulations. We are also proposing that if RINs are generated for fuel oils under the expansion of the scope of home heating oil in today's rule, and those fuel oils are designated for but not actually used to generate heat for climate control purposes, but for some other purpose, all parties involved in either the generation, assignment, transfer or use of that RIN, including the end user of that fuel oil, are subject to and liable for violations of the RFS2 regulations and the CAA.
For the text of the proposed regulatory changes please see the direct final rule, located in the “Rules and Regulations” section of this
For the purpose of registration, EPA is proposing to allow the producer of the expanded fuel oil types to establish their facility's baseline volume in the same manner as all other producers under the RFS program, e.g., based on the facility's permitted capacity or actual peak capacity. Additionally though, we are proposing to require producers of the expanded fuel oil types to submit affidavits in support of their registration, including a statement that the fuel will be used for the purposes of heating interior spaces of homes or buildings to control ambient climate for human comfort, and no other purpose. We also propose to require that producers submit secondary affidavits from the existing end users to verify that the fuel is actually being used for a qualifying purpose. We are also proposing new reporting, product transfer documents (PTD), and recordkeeping requirements discussed below that will be used as a means for verification that the qualifying fuel is being used in an approved application. We believe these requirements are necessary to assure confidence that the fuel used to generate RINs is actually used for a qualifying purpose because these types of fuel have not previously been used as heating oil, and are not readily identifiable by their physical characteristics. Without such safeguards, EPA could not be confident that the fuel is used as heating oil, and end users might not have adequate notice that the fuel must be used as heating oil. EPA believes these requirements will place a small burden on producers and end users, and greatly benefit the integrity of the program.
The proposed registration requirements are detailed in the registration section in 40 CFR 80.1450(b)(1)(ix) in the direct final rule located in the “Rules and Regulations” section of this
For the purpose of continued verification after registration, EPA is proposing additional requirements for reporting in § 80.1451(b)(1)(ii)(T), PTDs in § 80.1453(d), and recordkeeping in 40 CFR 80.1454(b), for the expanded fuel oil types.
The proposed reporting, PTD, and recordkeeping requirements will help ensure that the expanded fuel oil types that are used to generate RINs are actually used in a qualifying application. For reporting, producers would be required to file quarterly reports with EPA that identify certain information about the volume of fuel oil produced and used as heating oil. The additional reporting requirements would stipulate that the producer of fuel oils submit affidavits to EPA reporting the total quantity of the fuel oils produced, the total quantity of the fuel oils sold to end users, and the total quantity of fuel oils sold to end users for which RINs were generated. Additionally, affidavits from each end user would need to be obtained by the producer and reported to EPA, describing the total quantity of fuel oils received from the producer, the total amount of fuel oil used for qualifying purposes, the date the fuel oil was received from the producer, the blend level of the fuel oil, quantity of assigned RINs received with the renewable fuel, and quantity of assigned RINs that the end user separated from the renewable fuel, if applicable.
The proposed reporting, PTD, and recordkeeping requirements are detailed in the direct final rule located in the “Rules and Regulations” section of this
We are also proposing to amend the regulatory text that describes the general requirements for how RINs are generated and assigned to batches of renewable fuel by renewable fuel producers and importers. This would explicitly clarify a requirement that always existed: That producers and importer of renewable fuel who generate RINs must comply with the registration requirements of 40 CFR § 80.1450, the reporting requirements of 40 CFR 80.1451, the recordkeeping requirements of 40 CFR 80.1454, and all other applicable regulations of this subpart M. This is a generally applicable requirement—not specific to fuel meeting the definition of home heating oil.
The final regulations for the nonroad diesel program were published in the
Batches of different fuel products commonly abut each other as they are shipped in sequence by pipeline. When the mixture between two adjacent products is not compatible with either product, it is removed from the pipeline and segregated as transmix. Transmix typically is gathered for reprocessing at the end of the fuel distribution system far from a refinery. In addition to the long transportation distances to return transmix to a refinery for reprocessing, incorporating transmix into a refinery's feed also presents technical and logistical refining process challenges that typically make refinery reprocessing an unattractive option. Thus, transmix processers provide a valuable service in maintaining an efficient fuel distribution system. Transmix processing facilities handle very low volumes of fuel compared to a refinery and hence are limited to the use of a simple distillation tower and additional blendstocks to manufacture finished fuels. There is currently no desulfurization equipment which has been demonstrated to be suitable for application at a transmix processor facility. The cost of installing and operating a currently available desulfurization unit is too high in relation to the small volume of distillate fuel produced at transmix processing facilities. Some products shipped by pipeline such as jet fuel and heating oil are subject to relatively high sulfur specifications (e.g., maximum 3,000 ppm for jet fuel). The presence of such high sulfur products in multi product pipelines and consequently in transmix constrains the ability of transmix processors to produce a low sulfur distillate product.
The engine emissions standards finalized in the nonroad diesel rulemaking for new nonroad, locomotive, and Category 1 & 2 (C1 & C2) marine engines necessitates the use of sulfur-sensitive emissions control equipment which requires 15-ppm sulfur diesel fuel to function properly.
In the development of the proposed requirements for Category 3 (C3) marine engines, EPA worked with industry to evaluate how the enforcement provisions for the new 1,000-ppm C3 marine diesel fuel to be introduced in June of 2014 could be incorporated into existing diesel program provisions.
EPA received a petition from a group of transmix processors on June 29, 2010, requesting that the Agency reconsider and reverse the 2014 sunset date for the 500-ppm LM transmix flexibility.
Our analysis indicates that extending the 500-ppm LM flexibility beyond 2014 would have a neutral or net beneficial effect on overall emissions. The use of 500-ppm LM from transmix would be limited to older technology engines that do not possess sulfur-sensitive emission control technology. We believe that the proposed 500-ppm LM segregation and other associated requirements would prevent misfueling of sulfur-sensitive engines.
To evaluate the environmental consequences of extending the diesel transmix provisions, we compared the potential increase in sulfate particulate matter (PM) from the use of 500 ppm LM from transmix in older engines to the additional transportation emissions associated with shipment to the Category 3 (C3) marine market which might be deferred by allowing continued access to the 500 ppm LM market. Markets for locomotive and marine diesel tend to be nearer to transmix processing facilities than markets for C3 marine diesel. Therefore, extending the diesel transmix provisions would result in a reduction in nitrogen oxides (NO
Although some batches of transmix distillate product may approach the 500 ppm sulfur limit, we estimate that the average sulfur content of transmix distillate product would be no more than 300 ppm.
We estimate on average that transmix processors would need to ship their transmix distillate product an additional 150 miles by tank truck to reach the C3 Emission Control Area (ECA) marine market as compared to the 500 ppm LM market.
The extension of the 500-ppm LM transmix flexibility would defer additional transportation costs and provide a lower-cost fuel for use in older LM engines for many years to come given that the useful life of LM engines can exceed 40 years.
Industry stakeholders suggested alternative enforcement mechanisms to support the extended flexibility which would not necessitate reinstating and expanding the designate-and-track and fuel marker provisions that were retired by the C3 marine final rule. Reinstatement and expansion of these provisions would likely place an unacceptable burden on a large number of stakeholders, most of whom would not handle 500-ppm LM. The suggested alternative enforcement mechanism would impose minimal additional reporting and recordkeeping burdens only on the parties that produce, handle, and use 500-ppm LM. We believe that this alternative enforcement approach would meet the Agency's goals of ensuring that the pool of 500-ppm LM is limited to transmix distillate and that 500-ppm LM is not used in sulfur-sensitive emissions control equipment.
The compliance assurance provisions that we are proposing to support the extension of the diesel transmix flexibility are similar to those that were used to support the small refiner flexibilities in Alaska during the phase-in of EPA's diesel sulfur program.
We understand that some transmix processors currently rely on shipment by pipeline to reach the 500-ppm locomotive diesel market.
To provide an additional safeguard to ensure that volume of 500 ppm LM diesel fuel does not swell inappropriately, the volume increase during any single pipeline shipment must be limited to 2 volume percent or less. This limitation on volume swell to 2 volume percent or less is consistent with the limitation in 40 CFR 80.599(b)(5) regarding the allowed swell in volume during the shipment of highway diesel fuel for the purposes of the determination of compliance with the now expired volume balance requirements under 40 CFR 80.598(b)(9)(vii)(B). Industry did not object to this requirement, and therefore, we believe that limiting the volume swell of 500 ppm LM diesel fuel during shipment by pipeline to 2 volume percent or less should provide sufficient flexibility.
Product transfer documents (PTDs) for 500-ppm LM diesel would be required to indicate that the fuel must be distributed in compliance with the approved compliance assurance plan. Entities in the distribution chain for 500-ppm LM diesel fuel would be required to keep records on the volumes of the 500-ppm that they receive from and deliver to each other entity. Based on input from fuel distributors, keeping
The nonroad diesel rule specified that the small diesel refiner, credit, and transmix provisions would not apply in the Northeast Mid-Atlantic (NEMA) area. Hence, all LM diesel fuel shipped from refineries, transmix processors, and importers for use in the NEMA Area must meet a 15-ppm sulfur standard beginning June 1, 2012 when the 15-ppm standard becomes effective for large refiners and importers.
Transmix processors and other fuel distributors in the NEMA area stated that they were concerned that the changing state heating oil specifications would impact their ability to market transmix distillate product beginning in 2012 and increasingly over time. They requested that EPA extend the 500-ppm LM flexibility to the NEMA area by 2012 to lessen the impact on the fuel distribution system of complying with more stringent federal and state distillate sulfur standards. They stated that the enforcement mechanisms proposed above for use outside of the NEMA area after 2014 could apply equally well within the NEMA area beginning in 2012. They also stated that extending the proposed flexibility to inside the NEMA would not have an adverse environmental impact because of the potential to defer significant additional transportation emissions to the more distant C3 marine market.
The proposed provisions that would allow 500-ppm LM from transmix to be used outside of the NEMA area after 2014 would reinstate a flexibility that was withdrawn by the C3 marine final rule. Allowing 500-ppm LM to be used inside the NEMA area would provide more flexibility than was previously included in EPA's diesel program. We believe that extending the 500-ppm transmix flexibility to include the NEMA area will reduce distribution costs for their distillate product from transmix processors. Consequently, we are requesting comment on applying the proposed 500-ppm LM transmix provisions discussed above to the NEMA area beginning June 2012.
Similar to our analysis for outside of the NEMA area, our analysis of the potential environmental consequences of extending the diesel transmix flexibility to include the NEMA area indicates the effect on emissions would be neutral or positive. We also agree that the compliance assurance requirements that we are proposing for outside of the NEMA area could be applied within the NEMA area. A substantial fraction of the transmix processing industry markets fuel within the NEMA area. Thus, the potential cost reduction to industry and additional time to prepare for a transition to other markets for transmix distillate product that would be afforded by an extension of the proposed provisions to the NEMA would be significant.
The implementation of the 1,000-ppm sulfur C3 marine fuel requirements in 2014 would provide another outlet for transmix distillate product in the NEMA area to replace the disappearing above-15-ppm sulfur heating oil market. We request comment on whether, if we were to extend the 500-ppm LM transmix flexibility to inside the NEMA area, such an extension should be limited to the time period until the C3 marine fuel requirements becomes effective.
We also propose to amend the regulatory provisions regarding the transition in the fuel marker requirements for 500-ppm LM diesel fuel in 2012 to address an oversight in the original rulemaking where the regulations failed to incorporate provisions described in the rulemaking preamble. Today's proposed rule would amend the regulatory provisions regarding the transition in the fuel marker requirements for heating oil in 2014 to provide improved clarity.
The preamble in the nonroad diesel final rule stated that EPA intended to allow 500-ppm LM diesel fuel containing greater than 0.10 milligrams per liter of solvent yellow 124 (SY124) to be present at any location in the fuel distribution system (up to and including retail and wholesale-purchaser-consumer storage tanks) until September 30, 2012.
A number of locomotive and marine wholesale purchaser-consumers have taken custody of marked 500-ppm LM diesel fuel that they will not be able to consume prior to June 1, 2012. A number of fuel suppliers also have inventories of 500-ppm LM diesel fuel on hand that they may not be able to sell to LM diesel fuel users because such users are concerned about clearing their tanks of marked LM diesel fuel by June 1, 2012. We are proposing to allow marked 500-ppm LM diesel fuel to transition normally through the fuel distribution and use system, consistent with the original intent of the nonroad diesel rule preamble. Today's proposed rule would allow 500-ppm LM diesel fuel at any point in the fuel distribution and end use system to contain more than 0.10 milligrams per liter of SY 124 through November 30, 2012.
We are proposing to implement a single transition date applicable at all points in the fuel distribution and use system rather than a separate date applicable through retail and wholesale-purchaser-consumer (WPC) facilities and another date applicable at all locations including the tanks attached to locomotive and marine equipment because we believe that a stepped compliance schedule is not necessary and a single transition date provides the most flexibility for regulated parties. We expect that the marker will typically transition out of retailer and WPC LM diesel storage tanks well in advance of November 30, 2012. We further expect that users of LM diesel fuel can coordinate with retail and WPC facilities regarding deliveries of marked 500-ppm LM diesel fuel to ensure that the fuel in storage tanks attached to LM equipment is in compliance by November 30, 2012.
Today's proposed rule would also amend the regulation to clarify the transition of the solvent yellow 124 marker out of heating oil beginning June 1, 2014. Specifically, today's proposal would amend the regulations to clarify that after December 1, 2014, EPA will no longer have any requirements with respect to the use of the solvent yellow 124 marker. This is consistent with the intent expressed in our original nonroad diesel fuel rulemaking. We do not believe these proposed changes will adversely impact emissions.
Under Executive Order 12866 (58 CFR 51735 (October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821 (January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
The information collection requirements in this notice of proposed rulemaking and direct final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501
This action contains recordkeeping and reporting (registration and product transfer documentation) that may affect parties who produce or import renewable fuels subject to the proposed revised definition of heating oil. EPA expects that very few parties will be subject to additional recordkeeping and reporting. We estimate that up to 11 parties (i.e., RIN generators, consisting of up to 10 producers and one importer) may be subject to the proposed information collection over the next several years.
This action also contains provisions related to diesel fuel that is produced by transmix processors. We have proposed reporting requirements that would apply to transmix processors (all of whom are refiners) and other parties (such as carriers or distributors) in the distribution chain who handle diesel fuel produced by transmix producers. The collected data will permit EPA to: (1) Process compliance plans from transmix producers; and (2) Ensure that diesel fuel made from transmix meets the standards required under the regulations at 40 CFR part 80, and that the associated benefits to human health and the environment are realized. We estimate that 25 transmix processors and 150 other parties may be subject to the proposed information collection.
The proposed amendments to the fuel marker requirements for locomotive and marine diesel fuel in today's proposed rule do not contain any new recordkeeping and reporting requirements.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA has established a public docket for this rule, which includes the ICRs described above, under Docket ID number EPA–HQ–OAR–2012–0223. Submit any comments related to the ICR to EPA and OMB. See the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of 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 this action on small entities, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any new requirements on small entities. The relatively minor corrections and modifications this proposed rule makes to the final RFS2 regulations do not impact small entities. The proposed amendments to the diesel transmix provisions would lessen the regulatory burden on all affected tranmix processors and provide a source of lower cost locomotive and marine diesel fuel to consumers. We continue to be interested in the potential impacts of the rule on small entities and welcome comments on issues related to such impacts.
This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. We have determined that this action will not result in expenditures of $100 million or more for the above parties and thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and makes relatively minor corrections and modifications to the RFS2 and diesel sulfur regulations.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and makes relatively minor corrections and modifications to the RFS2 and diesel sulfur regulations. Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials.
This proposed rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249 (November 9, 2000)). It applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. This action makes relatively minor corrections and modifications to the RFS and diesel sulfur regulations, and does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action. Nonetheless, EPA specifically solicits additional comment on this proposed action from tribal officials.
EPA interprets EO 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 EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. We have concluded that this rule is not likely to have adverse energy effects because we do not anticipate adverse energy effects related to the additional
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (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.
EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. These amendments would not relax the control measures on sources regulated by the RFS regulations and therefore would not cause emissions increases from these sources. We have determined that proposed amendments to the diesel transmix provisions and marker provisions for locomotive and marine diesel fuel under the diesel sulfur program would have a neutral or positive impact on diesel vehicle emissions.
Statutory authority for the rule finalized today can be found in section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of today's rule, including the recordkeeping requirements, come from Sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and 7601(a).
Environmental protection, Administrative practice and procedure, Agriculture, Air pollution control, Confidential business information, Diesel fuel, Transmix, Energy, Forest and forest products, Fuel additives, Gasoline, Imports, Labeling, Motor vehicle pollution, Penalties, Petroleum, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
Indiana has applied to EPA for Final Authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Indiana's application with regards to federal requirements, and is proposing to authorize the state's changes.
Comments must be received on or before November 8, 2012.
Submit your comments, identified by Docket ID No. EPA–R05–RCRA–2012–0377 by one of the following methods:
Gary Westefer, Indiana Regulatory Specialist, U.S. EPA Region 5, LR–8J, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–7450, email westefer.gary@epa.gov.
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and request EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
We have made a tentative decision that Indiana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Indiana final authorization to operate its hazardous waste program with the changes described in the authorization application. Indiana will have responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Indiana, including issuing permits, until the state is granted authorization to do so.
The effect of this tentative decision, once finalized, is that a facility in Indiana subject to RCRA would have to comply with the authorized state requirements instead of the equivalent federal requirements in order to comply with RCRA. Indiana has enforcement responsibilities under its state hazardous waste program for RCRA violations, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include among others, authority to:
1. Do inspections, and require monitoring, tests, analyses or reports;
1. enforce RCRA requirements and suspend or revoke permits; and
3. take enforcement actions regardless of whether the state has taken its own actions.
This action will not impose additional requirements on the regulated community because the regulations for which Indiana will be authorized are already effective, and will not be changed by EPA's final action.
If EPA receives adverse comments on this authorization, we will address all public comments in a later
Indiana initially received Final Authorization on January 31, 1986, effective January 31, 1986 (51 FR 3955) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on October 31, 1986, effective December 31, 1986 (51 FR 39752); January 5, 1988, effective January 19, 1988 (53 FR 128); July 13, 1989, effective September 11, 1989 (54 FR 29557); July 23, 1991, effective September 23, 1991 (56 FR 33717); July 24, 1991, effective September 23, 1991 (56 FR 33866); July 29, 1991, effective September 27, 1991 (56 FR 35831); July 30, 1991, effective September 30, 1991 (56 FR 36010); August 20, 1996, effective October 21, 1996 (61 FR 43018); September 1, 1999, effective November 30, 1999 (64 FR 47692); January 4, 2001 effective January 4, 2001 (66 FR 733); December 6, 2001 effective December 6, 2001 (66 FR 63331); October 29, 2004 (69 FR 63100) effective October 29, 2004; and November 23, 2005 (70 FR 70740) effective November 23, 2005.
On March 5, 2007, May 1, 2009, and October 25, 2011, Indiana submitted final program revision applications, seeking authorization of their changes in accordance with 40 CFR 271.21. We have determined that Indiana's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final Authorization. We are now proposing to authorize, subject to receipt of written comments that oppose this action, Indiana's hazardous waste program revision. We propose to grant Indiana Final Authorization for the following program changes:
Indiana has excluded the non-delegable federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3. EPA will continue to implement those requirements. In 329 IAC 3.1–6–3 Indiana is more stringent in adding six hazardous wastes to the acute hazardous waste list that are not acute hazardous wastes in 40 CFR part 261. In section 3.1–9–2, Indiana maintains more stringent levels for groundwater protection for several of the constituents listed in Table 1 of 40 CFR 264.94. There are no Broader in Scope or more stringent provisions in Indiana's rules analogous to this application.
Indiana will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issues prior to the effective date of the proposed authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of the authorization. EPA will continue to implement and issue permits for HSWA requirements for which Indiana is not yet authorized.
Indiana is not authorized to carry out its hazardous waste program in “Indian Country,” as defined in 18 U.S.C. 1151. Indian Country includes:
1. All lands within the exterior boundaries of Indian Reservations within or abutting the State of Indiana;
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country.
Therefore, this action has no effect on Indian Country. EPA retains the authority to implement and administer the RCRA program on these lands.
Codification is the process of placing the state's statutes and regulations that comprise the state's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized state rules in 40 CFR part 272. Indiana's authorized rules, up to and including those revised January 4, 2001, have previously been codified through the incorporation-by-reference effective December 24, 2001 (66 FR 53728, October 24, 2001). We reserve the amendment of 40 CFR part 272, subpart P for the codification of Indiana's program changes until a later date.
This proposed rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by state law (see
The Office of Management and Budget has exempted this rule from its review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821 January 21, 2011).
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
This rule authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those required by state law. Accordingly, I certify that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4).
Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications (i.e., substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government).
Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, or 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 rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866 and because the EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.
This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866.
EPA approves state programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a state program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this rule.
As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order.
Because this rule proposes authorization of pre-existing state rules and imposes no additional requirements beyond those imposed by state law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental Protection; Administrative Practice and Procedure; Confidential business information; Hazardous materials transportation; Hazardous waste; Indians—lands; Intergovernmental relations; Penalties; Reporting, and Recordkeeping requirements.
This action is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on whether to retain or modify the current case-by-case analysis used to evaluate mobile spectrum holdings in the context of transactions and auctions, as well as whether to adopt bright-line limits advocated by some providers and public interest groups. In addition, the Commission seeks comment on updating the spectrum bands that should be included in any evaluation of mobile spectrum holdings and whether to make distinctions between different bands. Further, the Commission seeks comment on the appropriate product and geographic markets and other implementation issues such as attribution rules, remedies, and possible transition issues.
Interested parties may file comments on or before November 23, 2012, and reply comments on or before December 24, 2012.
You may submit comments, identified by WT Docket No. 12–269, by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process,
Christina Clearwater, Wireless Telecommunications Bureau, Spectrum and Competition Policy Division, (202) 418–1893, email at
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WT Docket No. 12–269, adopted September 28, 2012, and released September 28, 2012. The full text of the NPRM is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY–A257, Washington, DC 20554. It may also be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY–B402, Washington, DC 20554; the contractor's Web site,
1. With this Notice of Proposed Rulemaking, the Commission initiates a review of its policies governing mobile spectrum holdings in order to ensure that they fulfill its statutory objectives given changes in technology, spectrum availability, and the marketplace since the Commission's last comprehensive review more than a decade ago. In the last few years, large, medium, and small providers as well as public interest groups have raised concerns about the current approach, and sought review. In addition, the Commission adopts, in a separate proceeding, a Notice of Proposed Rulemaking in GN Docket No. 12–268 soliciting comment on the framework for an incentive auction of the broadcast television spectrum, which will represent a major addition of new spectrum available for mobile broadband. The Commission initiates this proceeding to provide rules of the road that are clear and predictable, and that promote the competition needed to ensure a vibrant, world-leading, innovation-based mobile economy.
2. Since the Commission's last comprehensive review of these issues, the number of spectrum bands used for mobile wireless services has expanded; new, innovative service offerings have been rolled out; increasingly sophisticated devices have been introduced into the marketplace; and consumers have adopted these devices to access a wide array of bandwidth-intensive applications. In light of the surge in consumer demand for mobile broadband services that require greater bandwidth, spectrum—a key input in the provision of mobile wireless services—is becoming increasingly critical for all providers. In this proceeding, the Commission seeks comment on retaining or modifying the current case-by-case analysis used to evaluate mobile spectrum holdings in the context of transactions and auctions, as well as on bright-line limits advocated by some providers and public interest groups. In addition, the Commission seeks comment on updating the spectrum bands that should be included in any evaluation of mobile spectrum holdings and whether it should make distinctions between different bands. The Commission also takes a fresh look at geographic market analysis and other implementation issues such as attribution rules, remedies, and possible transition issues. This proceeding affords the Commission the opportunity to receive valuable input from a broad range of active participants in the mobile broadband industry, as well as trade associations and consumer groups, that have requested that its policies be revised to keep pace with market changes.
3. Section 309(j)(3)(B) of the Communications Act provides that, in designing systems of competitive bidding, the Commission shall “promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses.”
4. Access to spectrum is a precondition to the provision of mobile wireless services. Ensuring the availability of sufficient spectrum is critical for promoting the competition that drives innovation and investment. Over time, the Commission has increased the amount of spectrum available for the provision of mobile wireless services, making this additional spectrum available in different frequency bands, bandwidths, and licensing areas. As discussed below, in order to address its statutory mandate, the Commission has implemented a variety of mobile spectrum aggregation policies and rules, including the cellular cross interest rule, the Personal Communications Service (PCS) cross-ownership rule, the Commercial Mobile Radio Services (CMRS) spectrum cap, and the current case-by-case spectrum aggregation analysis.
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9. In its consideration of transactions, the Commission generally has reviewed and, when necessary, adjusted its case-by-case analysis to reflect changing industry and consumer needs. In recent years, large and small wireless providers, as well as trade associations and public interest groups, have requested that the Commission undertake an examination of its current policies regarding mobile spectrum holdings. For example, Verizon Wireless has contended that the Commission should reconsider the particular spectrum to be examined in a competitive analysis and has urged that the Commission include additional spectrum bands. AT&T has expressed concerns that the current case-by case evaluation is not clear and predictable and the spectrum screen changes from one transaction to the next. AT&T has argued that there is “more regulatory uncertainty on top of an industry that is a foundation for a lot of today's innovation, making it difficult for all of us to allocate and commit capital,” and that “we don't know how much spectrum we're allowed to hold.” Sprint Nextel has argued that the current method of evaluating spectrum holdings values spectrum equally, “regardless of whether it lies within more valuable `beachfront' bands or in higher-frequency bands of limited commercial use.” T-Mobile has argued that to further the goal of a robust marketplace, the Commission should modify its case-by-case evaluation to recognize the difference in value of spectrum above and below 1 GHz.
10. The Rural Cellular Association (RCA) has urged the Commission to “take a fresh approach to its competitive analysis” instead of “recycl[ing] the outdated spectrum screen.” RTG has urged the Commission to conduct a more in-depth competitive review of large-scale transactions, in part by adopting a lower spectrum screen that will trigger a heightened level of review and allow consideration of certain factors other than the amount of spectrum held by licensees, in order to determine whether further spectrum concentration will threaten market competition. Both RTG and Leap Wireless have contended that the case-by-case approach creates uncertainty and/or suggest that an alternative approach would provide greater clarity.
11. During the past decade, the use of wireless services has surged as the number of spectrum bands used to provide mobile wireless services has expanded, an array of increasingly sophisticated devices has been introduced in the marketplace, and new service offerings have been rolled out. As discussed below, some of these changes could have implications for its policies regarding mobile spectrum holdings. The industry is undergoing a transformation, from an industry providing predominantly voice services to one that is increasingly focused on providing data services, particularly mobile broadband services. This transition has led to the need of competitors for more spectrum to meet the increasing demand for mobile broadband, which consumes greater amounts of bandwidth. In order to ensure that its policies continue to serve the public interest and keep pace with changing technologies and consumer needs, the Commission must consider these and other industry changes.
12. Facilitating access by all providers to valuable spectrum resources they need to serve their customers is essential given the current mobile wireless landscape. The rapid adoption of smartphones, as well as tablet computers and the wide-spread use of mobile applications, combined with deployment of high-speed 3G and 4G technologies, is driving more intensive use of mobile networks. A single smartphone can generate as much traffic as 35 basic-feature phones; a tablet as
13. Given the limited spectrum resources, the Commission must consider how its policies regarding mobile spectrum holdings can accommodate the increasing demand for spectrum by all providers. While there are numerous ways in which wireless service providers can increase network capacity to satisfy increasing demand, acquiring more spectrum has been the least costly way for all providers to address capacity constraints. In light of these circumstances, ensuring that the Commission's policies regarding mobile spectrum holdings promote access to spectrum is critical.
14. Since the sunset of the spectrum cap, there also have been other changes in the wireless industry that warrant reexamination of the Commission's policies. In 2003, when the Commission eliminated the spectrum cap, there were six mobile telephone operators that analysts then described as nationwide: AT&T Wireless, Sprint PCS, Verizon Wireless, T-Mobile, Cingular Wireless (“Cingular”), and Nextel.
15. In the sections below, the Commission seeks comment on whether and how to revise its policies and rules regarding mobile spectrum holdings. In particular, the Commission asks that comments address how to ensure that its policies and rules afford all interested parties greater certainty, transparency and predictability to make investment and transactional decisions, while also promoting the competition needed to ensure a vibrant, increasingly mobile economy driven by innovation. First, the Commission discusses general approaches to address competitive harm resulting from foreclosing access to spectrum, including a case-by-case analysis, bright-line limits, and other methodologies, and how they might apply not only to secondary market transactions but also to initial spectrum licensing after auctions. The Commission then takes a fresh look at implementation issues under various approaches, such as which spectrum should be considered, relevant product and geographic markets, and issues relating to attribution rules, appropriate remedies and transition concerns.
16. The Commission also seeks comment on the costs and benefits of any proposals or proposed changes to policies and rules. The Commission asks that commenters take into account only those costs and benefits that directly result from the implementation of the particular approach or rule that could be adopted. Further, to the extent possible, commenters should provide specific data and information, such as actual or estimated dollar figures for each specific cost or benefit addressed, including a description of how the data or information was calculated or obtained, and any supporting
17. The Commission seeks comment on its current policies regarding mobile spectrum holdings. In general, the Commission currently examines the impact of spectrum aggregation on competition, innovation, and the efficient use of spectrum on a case-by-case basis, after establishing the relevant product and geographic markets in each case.
18. The Commission recognizes that a case-by-case approach affords flexibility to consider different circumstances, permits a variety of factors to be considered, and allows it to better tailor any remedies to the specific harm and circumstances, particularly in its review of wireless transactions. In addition to recognizing factors unique to each licensee, a case-by-case approach allows the Commission to consider the changing needs of the mobile wireless marketplace more generally. On the other hand, a case-by-case approach is time- and resource-intensive, and has been criticized for creating uncertainty as to whether a particular transaction will be approved.
19. Finally, the Commission seeks comment on the specific costs and benefits of applying a case-by-case approach to initial licenses acquired through competitive bidding. Does a case-by-case analysis afford auction participants sufficient certainty to determine whether they would be allowed to hold a given license post-auction? Does the lack of a bright-line spectrum limit deter auction participation? Further, does the lack of a bright-line rule provide an opportunity for licensees to bid on spectrum, regardless of whether they believe they ultimately would be allowed to hold the licenses, in order to raise bidding costs or foreclose other competitors from acquiring certain licenses? A case-by-case approach could result in an inefficient auction process if the Commission ultimately denies the winning bidder's application to hold a license. In addition to imposing costs on competitors, the expenditure of public or private resources and resulting delay in awarding the spectrum to another bidder impose costs on the public. The Commission seeks comment on whether there are additional measures it would need to adopt to promote an effective and efficient auction process while discouraging the potential for anticompetitive behavior. If the Commission continues its case-by-case analysis for secondary market transactions, should the Commission adopt another approach for initial licensing rather than a case-by-case analysis, such as band-specific limits adopted prior to an auction?
20. As discussed above, the Commission employed a CMRS spectrum cap to prevent excessive spectrum concentration, but eliminated that cap in 2003 and then started using the current case-by-case approach. Before employing a CMRS spectrum cap, the Commission used other bright-line limits on spectrum holdings.
21. The Commission seeks comment on related implementation issues with respect to applying bright-line limits to initial licenses acquired through competitive bidding as well as to licenses acquired through the secondary market. The Commission further seeks comment on whether it should consider applying a band-specific spectrum limit in the context of any band-specific service rules that are adopted prior to an auction. Such an approach would be consistent with the Commission's practice of seeking comment on spectrum aggregation issues with respect to particular spectrum bands prior to an auction, would afford auction participants greater certainty, and would allow the Commission to re-evaluate its spectrum aggregation policies in the context of newly available spectrum bands and changing industry and consumer needs.
22. The Commission seeks comment on any alternative approaches to evaluate the competitive effect of spectrum aggregation. Are there other mechanisms for evaluating spectrum aggregation that would better serve the public interest and meet the Commission's statutory objectives? In this regard, the Commission seeks comment on whether there are different ways in which it could conduct a case-by-case analysis, such as adopting a case-by-case analysis that does not include an initial spectrum screen. Another approach would be to combine some elements of a bright-line limit with a case-by-case analysis. One hybrid approach would be to adopt a bright-line threshold that, if exceeded, would trigger a heightened burden on the applicants to demonstrate that approval of the proposed transaction would be in the public interest. The Commission seeks comment on these approaches and how they could be implemented, and on any other alternatives.
23. Certain threshold issues would need to be considered if the Commission were to adopt any new or modified approach to reviewing mobile spectrum holdings, including establishing initial definitions such as the relevant product and geographic markets, assessing the spectrum bands that should be included, and deciding how to treat different spectrum bands. Finally, the Commission discusses attribution and remedies, and explores whether there are other factors for it to consider in this area.
24. In order to assess competition in a given market, the Commission has initiated its analysis of a proposed transaction by establishing definitions for the relevant product market. In recent wireless transactions, the Commission has determined that the relevant product market is a combined “mobile telephony/broadband services” product market,
25. The Commission seeks comment on whether the current approach to the product market definition continues to be appropriate. Given the transition to data-centric services and the development of more spectrum-efficient technologies that will transmit voice as data,
26. In order to assess whether any particular spectrum acquisition exceeds a certain threshold of available spectrum, the Commission first must determine what spectrum it will include in its overall evaluation. Currently, the Commission includes spectrum in its case-by-case analysis if it determines that it is suitable and available for the
27. Should the Commission continue to consider spectrum based on its suitability and availability for a given product market? Are there other factors that the Commission should consider in determining whether particular spectrum bands are suitable and available for the relevant product market? The Commission seeks comment on any measures that might increase the transparency with which it determines what spectrum it would include in a case-by-case spectrum analysis or in implementing bright-line limits. For example, should the Commission adopt a regular process to add or remove existing or newly allocated spectrum bands for purposes of assessing spectrum concentration? The Commission also seeks comment on the costs and benefits of implementing a new process for identifying the spectrum to include in a case-by-case spectrum analysis. The Commission seeks comment on the legal, economic, and engineering justifications to support the existing or any modified criteria for determining the suitability and availability of spectrum.
28. While mobile wireless operators primarily have used licenses associated with three different frequency bands to provide mobile voice and, in most cases, mobile data services—cellular (in the 850 MHz band), SMR (in the 800/900 MHz band), and broadband PCS (in the 1.9 GHz band)—providers are now incorporating additional spectrum bands into their networks, such as BRS and EBS in the 2.5 GHz band, AWS in the 1.7/2.1 GHz band, and the 700 MHz band. These bands enable the provision of additional competitive mobile voice and data services.
29. Further, the Commission seeks comment on whether it should remove any spectrum bands from its consideration. For instance, the Commission recently indicated that, as the provision of mobile broadband services becomes increasingly central to wireless transactions, it may be appropriate to reduce the amount of suitable SMR spectrum from 26.5 megahertz to 14 megahertz to reflect the portion of SMR spectrum through which mobile broadband service can be provided.
30. Defining the relevant geographic market is important in accurately assessing the competitive effects that may result from a potential transaction. This can be a difficult process in some instances, as the licensed areas of different spectrum bands, and even within the same band, may not be the same. Under the case-by-case analysis, the Commission has found that relevant geographic markets are local, larger than
31. In the recent
32. In light of the above, the Commission seeks comment on the appropriate geographic market definition to use when evaluating a licensee's mobile spectrum holdings. If the Commission were to adopt bright-line limits or continue to use a case-by case analysis, what should be the applicable geographic market? Should the Commission adopt a two-tiered approach under which there is a spectrum threshold at the local level and a separate threshold that applies on a nationwide basis?
33. As part of the current case-by-case review process, the Commission examines the amount of spectrum suitable and available on a market-by-market basis for the provision of mobile telephony/broadband service. The Commission uses a spectrum screen, which is approximately one-third of the total spectrum suitable and available for mobile telephony/broadband services, to help identify markets where the acquisition of spectrum provides particular reason for further competitive analysis. The Commission conducts the further competitive analysis to determine whether the transaction would result in an increased likelihood or ability in those markets for the combined entity to behave in an anticompetitive manner.
34. The spectrum threshold can affect the number of competitors in a geographic market. The one-third threshold currently used in the Commission's case-by-case review envisions at least three competitors having access to approximately the same amount of suitable spectrum for providing mobile wireless broadband service. Whether the Commission uses the threshold in a case-by-case review or as a bright-line limit, is one-third the appropriate threshold level, or should the threshold be higher in rural areas? Given that the licensed geographic areas of different spectrum bands, and even within the same band, may not be the same, commenters should address any issue that may arise in calculating mobile spectrum holdings at the local level. Finally, for transactions that involve a large geographic area with national characteristics, the Commission seeks comment on how to calculate mobile spectrum holdings at the national level.
35. The Commission also seeks comment on whether it should adopt an approach to evaluating a licensee's mobile spectrum holdings that accounts for differing characteristics of spectrum bands. The Commission has recognized that spectrum resources in different frequency bands can have disparate technical characteristics that affect how the bands can be used to deliver mobile services.
36. If the Commission were to adopt differential treatment for different spectrum bands, what mechanism should the Commission use to evaluate the aggregation of below 1 GHz spectrum? Should the Commission add a threshold limit for below 1 GHz spectrum as part of its current case-by-case review? For example, the Commission could establish a trigger under which an entity that would hold, post-transaction, more than one third of the relevant spectrum below 1 GHz in a geographic market would be subject to a more detailed competitive review in that market. Or, alternatively, the Commission could establish bright-line limits for spectrum holdings below 1 GHz. If so, what should those limits be? Should the Commission consider adopting limits on the amount of below 1 GHz spectrum that entities could acquire in the context of spectrum auctions? The Commission also could adopt a hybrid approach, for instance, in which it establishes a bright-line limit for below 1 GHz spectrum and conduct a case-by-case analysis of total mobile spectrum holdings. Under such an approach, no licensees could aggregate more than the specified percentage of spectrum below 1 GHz in the market, but the Commission would conduct a case-by-case review on total mobile spectrum holdings, with a particular focus on markets where an applicant's post-transaction spectrum holdings would exceed a spectrum screen threshold. What are the costs and benefits of these various approaches? Is 1 GHz an appropriate demarcation line for a separate competitive analysis and associated threshold? Consistent with the Commission's intention regarding the applicability of any revised policies for overall spectrum holdings,
37. Are there other ways the Commission should distinguish among spectrum bands, such as taking into account the value of spectrum held by each licensee rather than the amount of spectrum held, as some parties have proposed?
38. If the Commission were to assign value to spectrum for purposes of its policy on mobile spectrum holdings,
39. The Commission seeks comment on other methods or considerations that might be relevant in reviewing its policies regarding mobile spectrum holdings. In its current case-by-case approach, the Commission considers factors such as the number of rival service providers, firms' network coverage, rival firms' and the licensee's market shares, the applicant's post-transaction spectrum holdings, and the spectrum holdings of each of the rival service providers.
40. No matter which approach the Commission decides to take, it needs attribution rules to determine which of a licensee's spectrum interests counts toward that licensee's total mobile spectrum holdings. Under the spectrum cap, the Commission's attribution rules were designed to protect competition in the wireless services marketplace by making certain equity and non-equity interests attributable. Some non-equity interests in spectrum, as well as equity interests in spectrum that are less than controlling, can potentially confer the ability to significantly influence wireless service offerings and prices to one or a few parties, and the Commission seeks to make these interests cognizable under its attribution rules.
41. Over time, while the Commission's policies regarding mobile spectrum holdings have changed, its attribution rules consistently have focused on a licensee's controlling interests, as well as non-controlling and other interests above a certain percentage threshold or that result in
42. In light of these past and present approaches, the Commission seeks comment on whether and how the attribution rules that are used to implement its policies regarding mobile spectrum holdings should be amended if it decides to continue the existing case-by-case review of transactions or in the event that it alters its transaction review mechanism. Regardless of which approach taken, what interests should be attributable for purposes of reviewing mobile spectrum holdings? The attached draft rules generally follow the attribution standards the Commission currently applies,
43. In considering applications for initial licenses and applications for the assignment or transfer of control of licenses, including spectrum leasing, the Commission must determine whether the applicants have demonstrated that the application will serve the public interest, convenience, and necessity.
44. The Commission seeks comment on what remedies, including divestitures, would be appropriate for it to require in order to prevent competitive harm. The Commission seeks comment on the value of divestures as a remedy to redress particular competitive harms, and whether different approaches or types of divestures would best serve the Commission's goals, including providing clarity and certainty to parties while promoting competition. If granting a license application or an assignment or transfer of control of licenses to a licensee would result in competitive harm, should that licensee be required to divest spectrum only in markets where it would exceed the spectrum aggregation threshold, or should it be required to divest more broadly across its licensed markets, and under what, if any, conditions? The Commission notes that there are a number of approaches to divestitures, including a clustered approach that would require divestitures of population centers to allow a prospective purchaser to offer a viable service and to minimize or prevent piecemeal divestiture.
45. Many licensees hold spectrum in multiple frequency bands with different propagation or other characteristics, and some spectrum holdings may be more valuable than others. Some parties have proposed that the Commission should adopt different criteria for divestiture based on whether the spectrum to be divested is from lower or upper frequency bands
46. As an alternative or supplement to divestiture, the Commission has also placed conditions on transactions to remedy certain aspects that may be contrary to the public interest, convenience, and necessity, including any potential anti-competitive effects of the transaction. For example, in the
47. The Commission also seeks comment on whether there are other remedial approaches it could require and how it might apply them. Commenters should discuss and, to the extent possible, quantify any associated costs or benefits of implementing any remedial approaches or any other proposals. Commenters should address the particular benefits associated with these remedies, and the cost savings, if any, that may be available from requiring certain conditioned spectrum access.
48. With regard to spectrum acquired through competitive bidding, the Commission prospectively applies a competitive analysis of spectrum to be acquired through auctions in order to determine whether granting a winning bidder's license application is in the public interest and whether requiring divestiture prior to granting such application is necessary to protect the public interest.
49. If the Commission were to change its current case-by-case approach or adopt new rules or policies, the Commission seeks comment on transition issues to consider as new rules or policies are implemented. For example, the Commission would not anticipate revisiting licensees' current spectrum holdings under any revised policy, but instead it would anticipate grandfathering those holdings. The Commission seeks comment on that issue, as well as on any other transition issues that may arise in implementing the new rules or policies.
50. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact of the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM) on a substantial number of small entities. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments as listed on the first page of this document. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
51. Although Section 213 of the Consolidated Appropriations Act of 2000 provides that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the 746–806 MHz Band, the Commission believes that it would serve the public interest to analyze the possible significant economic impact of the proposed policy and rule changes in this band on a substantial number of small entities. Accordingly, this IRFA contains an analysis of this impact in connection with all spectrum that falls within the scope of the NPRM, including spectrum in the 746–806 MHz Band.
52. With this NPRM, the Commission initiates a review of its policies governing mobile spectrum holdings in order to ensure that they fulfill its statutory objectives given changes in technology, spectrum availability, and the marketplace since the Commission's last comprehensive review. Specifically, the Commission seeks comment on retaining or modifying the current case-by-case analysis used to evaluate mobile spectrum holdings in the context of transactions and auctions, as well as on bright-line limits advocated by some providers and public interest groups. In addition, the Commission seeks comment on updating the spectrum bands that should be included in any evaluation of mobile spectrum holdings, and whether the Commission should make distinctions between different bands. The Commission also takes a fresh look at the relevant product market, geographic market, and other implementation issues such as attribution rules, remedies, and transition issues. The Commission initiates this proceeding to provide rules of the road that are clear and predictable, and that promote the competition needed to ensure a vibrant, world-leading, innovation-based mobile economy.
53. In its examination of the current case-by-case analysis used to evaluate mobile spectrum holdings, the Commission seeks comment on the costs and benefits of a case-by-case analysis to consumers, wireless service providers and others, as well as the overall effectiveness of such an approach in achieving its public policy objectives. The Commission also seeks comment on the specific costs and benefits of applying a case-by-case approach to initial licenses acquired through competitive bidding. In this regard, the Commission seeks comment on whether a case-by-case analysis affords auction participants sufficient certainty to determine whether they would be allowed to hold a given license post-auction and on whether the lack of a bright-line spectrum limit deters participation or provides an opportunity for bidding, regardless of whether bidders believe they ultimately would be allowed to hold the licenses, in order to raise bidding costs or foreclose other competitors from acquiring certain licenses. Further, the Commission requests comment on whether there are additional measures the Commission would need to adopt to promote an effective and efficient auction process while discouraging the potential for anticompetitive behavior, such as including band-specific limits adopted prior to an auction.
54. In addition, the Commission seeks comment on whether the adoption of bright-line limits would serve the public interest now, and on the specific costs
55. If the Commission were to adopt any new or modified approach to reviewing mobile spectrum holdings, certain threshold issues would need to be considered, including initial definitions of the relevant product and geographic markets, deciding the relevant spectrum bands and their treatment, as well as attribution rules and potential remedies. Toward that end, the Commission seeks comment on whether the relevant product market has changed and, if so, whether these changes warrant any modifications to the Commission's product market definition. The Commission also seeks comment on how it should determine what spectrum to include in its overall evaluation. The Commission requests comment on any measures that might increase the transparency with which it determine what spectrum it would include in a case-by-case spectrum analysis or in implementing bright-line limits. The Commission further seek comment on the costs and benefits of implementing a new process for identifying the spectrum to include in a case-by-case spectrum analysis. Finally, what are the legal, economic, and engineering justifications to support the existing or any modified criteria for determining suitability and availability of spectrum?
56. Aside from general factors the Commission should consider in determining whether spectrum is suitable and available, the Commission also seeks comment on the application of these factors to particular spectrum bands. Specifically, the Commission seeks comment on which spectrum bands should be included, reduced, or removed from consideration in its spectrum analysis and whether there are any band-specific factors the Commission should consider in determining suitability and availability of a particular band.
57. The Commission also seeks comment on the appropriate geographic market definition to use when evaluating a licensee's mobile spectrum holdings, including any other issues with respect to geographic market definition that might be relevant to adopting a bright-line limit, case-by-case analysis, or any other approach that would promote competition and prevent excessive concentration of spectrum in any given area. Should the Commission adopt a two-tiered approach under which there is a spectrum threshold at the local level and a separate threshold that applies on a nationwide basis? In addition, the Commission seeks comment on the appropriate spectrum threshold to be used in evaluating mobile spectrum holdings, including whether the threshold should be higher in rural areas. For transactions that involve a large geographic area with national characteristics, the Commission also seeks comment on how to calculate mobile spectrum holdings at the national level.
58. The Commission has recognized that spectrum resources in different frequency bands can have disparate technical characteristics that affect how the bands can be used to deliver mobile services. Therefore, the Commission seeks comment on whether the Commission should adopt an approach to evaluating a licensee's mobile spectrum holdings that accounts for differing characteristics of spectrum bands, including whether the spectrum is below or above 1 GHz. If the Commission were to adopt differential treatment for different spectrum bands, the Commission seeks comment on what mechanism it should use to evaluate the aggregation of below 1 GHz spectrum and whether to apply different threshold limits—for example one to spectrum below 1 GHz and another to spectrum above 1 GHz. The Commission also seeks comment on whether to take into account the value of spectrum held by each licensee rather than the amount of spectrum held. If it were to assign value to spectrum, the Commission seeks comment on what variables it should consider when doing so. Possible variables include geographic location and location within the spectrum band itself.
59. Further, the Commission seeks comment on other methods or considerations that might be relevant in reviewing its policies regarding mobile spectrum holdings. For instance, should the Commission take into account special circumstances, such as how efficiently the licensee is using its existing spectrum resources and whether it has alternatives to meet its competitive needs aside from acquiring more spectrum? As part of a case-by-case analysis, should the Commission calculate the spectrum HHI, or the increase in concentration of spectrum shares post-transaction?
60. No matter which approach it decides to take, the Commission needs attribution rules to determine which of a licensee's spectrum interests counts toward that licensee's total mobile spectrum holdings. Whether or not the Commission decides to alter its review mechanism for transactions and license applications, the Commission seeks comment on whether and how the attribution rules that are used to implement its policies regarding mobile spectrum holdings should be amended and on what interests should be attributable for purposes of reviewing mobile spectrum holdings. The Commission also seeks comment on the types of interests that should be of primary importance when it reviews proposed transactions, and whether and how the importance of any attributable interests may have changed over time. Additionally, the Commission seeks comment on whether it should define as attributable any interests that have not been attributed in the past or exclude any non-controlling interests that have been attributed in the past. Further, if the Commission makes any changes to its spectrum holdings review process, how, if at all, should it attribute leased mobile spectrum holdings.
61. In considering applications for initial licenses and applications for the assignment or transfer of control of licenses, including spectrum leasing, the Commission must determine whether the applicants have demonstrated that the application will serve the public interest, convenience, and necessity. The Commission reviews the competitive effects of a transaction under the broad public interest standard, and may impose remedies, such as requiring divestitures of certain licenses, to address potential harms likely to result from a transaction or to help ensure the realization of potential benefits promised for the transaction. With this in mind, the Commission seeks comment on what remedies, including divestitures, would be appropriate for the Commission to require in order to prevent competitive harm. The Commission also seeks comment on the value of divestures as a remedy to redress particular competitive harms, and whether different approaches or types of divestures including a clustered approach, full business unit divestures,
62. The Commission also seeks comment on measures it can adopt to facilitate spectrum being divested expeditiously to licensees that will put it to use quickly and efficiently, and what conditions, limits or other rules should apply if the Commission should decide to permit divestiture of spectrum by sale on the secondary market. Toward that end, the Commission proposes rules governing mobile spectrum holdings. These include proposed Section 20.21(b), which would require applicants subject to divestiture of interests as required by the Commission, in conjunction with the grant of a license application or a transfer of control or assignment of authorization, to divest expeditiously, and within the time period specified by the Commission.
63. In addition, many licensees hold spectrum in multiple frequency bands with different propagation or other characteristics, and some spectrum holdings may be more valuable than others. The Commission seeks comment on whether it should adopt different criteria for divestiture based on whether the spectrum to be divested is from lower or upper frequency bands or is immediately “useable” by another licensee, perhaps for a particular technology, and any other factors it should consider when determining which and how much spectrum should be divested to prevent competitive harm. The Commission also seeks comment on any other approach to spectrum divestiture that would meet its goals of promoting competition yet make its policies regarding mobile spectrum holdings more clear, transparent and predictable.
64. Further, as an alternative or supplement to divestiture, the Commission has previously placed conditions on transactions to remedy certain aspects that may be contrary to the public interest, convenience, and necessity, including any potential anti-competitive effects of the transaction. The Commission seeks comment on the extent to which it should remedy the potential harms posed by a transaction by placing other conditions on it, including leasing, roaming, or collocation, in conjunction with or in lieu of requiring divestitures. The Commission also seeks comment on whether there are other remedial approaches it could require and how it might apply them. The Commission further seeks comment on what changes and clarifications might be needed in using divestiture as a remedy to cure competitive harm resulting from spectrum acquired in an auction in the context of a case-by case analysis.
Finally, the Commission seeks comment on whether there are any transition issues to consider if new rules or policies are implemented. The Commission anticipates that grandfathering existing holdings in excess of any spectrum limit it may adopt would serve the public interest. The Commission seeks comment on the grandfathering issue, as well as on any other transition issues that may arise in implementing the new rules or policies.
65. The sources of authority for the actions proposed in this NPRM are contained in Sections 1, 2, 4(i), 4(j), 301, 303(g), 303(r), 309(j) and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 152, 154(i), 154(j), 301, 303(g), 303(r), 309(j) and 310(d).
66. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
67. In the following paragraphs, the Commission further describes and estimates the number and type of small entities that may be affected by its proposals regarding mobile spectrum holdings. Implementing new policies regarding mobile spectrum holdings would affect entities that hold or lease spectrum within spectrum bands that are available for mobile wireless service.
68. This IRFA analyzes the number of small entities affected on a service-by-service basis. When identifying small entities that could be affected by the Commission's new rules, this IRFA provides information that describes auction results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or a transfer of control application that involves unjust enrichment issues.
69.
70.
71. In this category, the SBA has deemed a wireless telecommunications carrier to be small if it has fewer than 1,500 employees. For this category of carriers, Census data for 2007, which supersede similar data from the 2002 Census, shows 1,383 firms in this category. Of these 1,383 firms, only 15 (approximately 1%) had 1,000 or more employees. While there is no precise Census data on the number of firms in the group with fewer than 1,500 employees, it is clear that at least the 1,368 firms with fewer than 1,000 employees would be found in that group. Thus, at least 1,368 of these 1,383 firms (approximately 99%) had fewer than 1,500 employees. Accordingly, the Commission estimates that at least 1,368 (approximately 99%) had fewer than 1,500 employees and, thus, would be considered small under the applicable SBA size standard.
72.
73.
74.
75.
76.
77.
78. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 14 winning bidders in that auction, six claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
79.
80.
81. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
82.
83.
84.
85. The auction of the 1,053 800 MHz SMR licenses for the General Category channels was conducted in 2000. Eleven bidders who won 108 licenses for the General Category channels in the 800 MHz SMR band qualified as small or very small businesses. In an auction completed in 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small or very small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed to be small businesses.
86. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues not exceeding $15 million. One firm has over $15 million in revenues. In addition, the Commission does not know how many of these firms have 1,500 or fewer employees. The Commission assumes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is approved by the SBA.
87.
88.
89. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities.
90. The NPRM initiates a review of the FCC's policies and rules governing mobile spectrum holdings. The FCC seeks comment on whether it should retain or modify its current rules. To the extent the Commission retains its current policies, this proceeding will not result in any additional reporting, recordkeeping, or other compliance burdens. If the FCC modifies its rules, those changes could alter the compliance requirements (and burdens) that apply to small entities. Those burdens, which may be offset by efficiencies associated with any modified rules, could include professional skills necessary to monitor and abide by the new rules, burdens associated with the ability to retain or acquire additional spectrum, and costs associated with changes in market competition.
91. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
92. In light of the surge in consumer demand for mobile broadband services that require greater bandwidth, spectrum is becoming increasingly critical for all providers. With that in mind, the Commission initiates a review of policies governing mobile spectrum holdings. This proceeding provides the opportunity to obtain valuable input from a broad range of active participants in the mobile broadband industry, trade associations, and consumer groups that have requested that the Commission's policies be revised to keep pace with market changes. The Commission seeks comment on whether and how to revise its policies and rules regarding mobile spectrum holdings. In particular, the Commission seeks alternatives that address how to ensure that its policies and rules afford all interested parties greater certainty, transparency and predictability to make investment and transactional decisions, while reducing the regulatory burdens on small entities.
93. First, the Commission seeks comment on retaining or modifying the current case-by-case analysis used to evaluate mobile spectrum holdings in the context of transactions and auctions, as well as on bright-line limit proposals advocated by some providers and public interest groups. The Commission seeks comment on the costs and benefits of a case-by-case analysis to consumers, wireless service providers and others, as well as the overall effectiveness of such an approach in achieving its public policy objectives. The Commission requests alternatives that would reduce the burdens on small entities while making the process more transparent, predictable, or better tailored to promote its goals.
94. The Commission also seeks comment on whether adoption of bright-line limits would now serve the public interest, and if so on its potential application, and on the specific costs and benefits of adopting bright-line limits. The Commission seeks possible alternatives that would best balance the goal of providing greater certainty, clarity, and predictability with regard to auction participation and secondary market transactions while maximizing the Commission's flexibility to consider individualized circumstances and respond swiftly to the changing needs of the mobile wireless industry and consumers, all while reducing the burden on small entities. Further, the Commission seeks comment on any alternative approaches regarding the competitive effect of spectrum aggregation, how alternative approaches could be implemented, and on any other alternatives that would further reduce burdens on small businesses.
95. The Commission also seeks comment on whether the current approach to the product and geographic market definitions continues to be appropriate when evaluating a licensee's mobile spectrum holdings. The Commission seeks alternate proposals that might increase the transparency with which it determines what spectrum it would include in a case-by-case spectrum analysis or in implementing bright-line limits, as well as any other approach that would promote competition and prevent excessive concentration of spectrum in any given area. Such alternative proposals should address the issue of reducing burdens on small business.
96. In addition, the Commission seeks comment on updating the spectrum bands that should be considered in any evaluation of mobile spectrum holdings and whether to make distinctions between bands. The Commission requests alternatives that would reduce the burdens on small entities while advancing the goals of promoting wireless competition, innovation, investments and broadband deployment in rural areas.
97. The Commission also seeks comment on whether and how the attribution rules that are used to implement its policies regarding mobile spectrum holdings should be amended if the Commission decides to continue its existing case-by-case review of transactions and in the event that the Commission alters its transaction review mechanism. Further, the Commission seeks comment on its proposed rules regarding attribution standards, which include a waiver provision, and more generally on the types of interests that should be of primary importance when the Commission reviews proposed wireless transactions, and whether and how the importance of any attributable interests may have changed over time. The Commission seeks to receive alternate proposals regarding potential changes to the attribution rules in general, and more specifically how any proposed changes could limit the burdens on small entities.
98. The Commission also seeks comment on what remedies, including divestitures, would be appropriate to prevent competitive harm, and how it might apply them. The Commission seeks comment on the value and types of divestitures that would be effective remedies to redress particular competitive harms, its proposed divestiture rule, and any other
99. Finally, if the Commission were to change its current case-by case approach or adopt new rules or polices, the Commission seeks comment on whether there are any transition issues to consider as new rules or policies are implemented, such as considering grandfathering spectrum held before the effective date of any new rule or policy. The Commission seeks alternate proposals that would best achieve the goal of reducing the burdens on small business while making its policies regarding mobile spectrum holdings more clear, transparent and predictable.
100. For each of the proposals in the Notice, the Commission seeks discussion, and where relevant, alternative proposals, on the effect that each prospective new requirement, or alternative rules, might have on small entities. For each proposed rule or alternative, the Commission seeks discussion about the burden that the prospective regulation would impose on small entities and how the Commission could impose such regulations while minimizing the burdens on small entities. For each proposed rule, the Commission asks whether there are any alternatives it could implement that could achieve the Commission's goals while at the same time minimizing the burdens on small entities. For the duration of this docketed proceeding, the Commission will continue to examine alternatives with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities.
None.
101. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
102.
103. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
104.
105.
106.
107. Accordingly,
108.
Communications common carriers.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 20 as follows:
1. The authority citation for part 20 continues to read as follows:
47 U.S.C. 154, 160, 201, 251–254, 301, 303, 316, and 332 unless otherwise noted. Section 20.12 is also issued under 47 U.S.C. 1302.
2. Add § 20.21 to read as follows:
(a) This section applies to mobile spectrum holdings that are suitable and available for commercial use. Applicants for mobile spectrum licenses for commercial use, for assignment or transfer of control of such licenses, or for long-term
(b) Divestiture of interests as required by the Commission, in conjunction with the grant of a license application or a transfer of control or assignment of authorization, must occur expeditiously, and within the time period specified by the Commission.
(c)
(1) Controlling interests shall be attributable. Controlling interest means majority voting equity ownership, any general partnership interest, or any means of actual working control (including negative control) over the operation of the licensee, in whatever manner exercised.
(2) Non-controlling interests of 10 percent or more in mobile spectrum holdings shall be attributable. Non-controlling interests of less than 10 percent in mobile spectrum holdings shall be attributable if the Commission determines that such interest confers
(3) The following interests in mobile spectrum shall also be attributable to holders:
(i) Officers and directors of a licensee shall be considered to have an attributable interest in the entity with which they are so associated. The officers and directors of an entity that controls a licensee or applicant shall be considered to have an attributable interest in the licensee.
(ii) Ownership interests that are held indirectly by any party through one or more intervening corporations will be determined by successive multiplication of the ownership percentages for each link in the vertical ownership chain and application of the relevant attribution benchmark to the resulting product, except that if the ownership percentage for an interest in any link in the chain exceeds 50 percent or represents actual control, it shall be treated as if it were a 100 percent interest. (For example, if A owns 20 percent of B, and B owns 40 percent of licensee C, then A's interest in licensee C would be 8 percent. If A owns 20 percent of B, and B owns 51 percent of licensee C, then A's interest in licensee C would be 20 percent because B's ownership of C exceeds 50 percent.)
(iii) Any person who manages the operations of a licensee pursuant to a management agreement shall be considered to have an attributable interest in such licensee if such person, or its affiliate, has authority to make decisions or otherwise engage in practices or activities that determine, or significantly influence, the nature or types of services offered by such licensee, the terms upon which such services are offered, or the prices charged for such services.
(iv) Any licensee or its affiliate who enters into a joint marketing arrangement with another licensee or its affiliate shall be considered to have an attributable interest in the other licensee's holdings if it has authority to make decisions or otherwise engage in practices or activities that determine or significantly influence the nature or types of services offered by the other licensee, the terms upon which such services are offered, or the prices charged for such services.
(v) Limited partnership interests shall be attributed to limited partners and shall be calculated according to both the percentage of equity paid in and the percentage of distribution of profits and losses.
(vi) Debt and instruments such as warrants, convertible debentures, options, or other interests (except non-voting stock) with rights of conversion to voting interests shall not be attributed unless and until converted or unless the Commission determines that these interests confer
(vii) Long-term
(4) Requests for waivers of paragraph (c) of this section, pursuant to § 1.925 of the Commission rules, must contain the information necessary to make an affirmative showing to the Commission that:
(a) The interest holder is not likely to affect the relevant geographic market(s) in an anticompetitive manner;
(b) The interest holder is not involved in the day-to-day operations of the licensee and does not have the ability to influence the licensee on a regular basis; and
(c) Grant of a waiver is in the public interest because the benefits to the public of common ownership outweigh any potential harm to the market.
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission proposes to update technical and operational rules related to cable television systems and other multichannel video programming distributors that operate coaxial cable systems. The Commission seeks comments on rules that would update its minimum signal quality standards and signal leakage detection and monitoring for digital transmission. Additionally, the Commission proposes numerous corrections and updates to its to its cable television technical rules.
Comments are due on or before December 10, 2012; reply comments are due on or before January 7, 2013. Written PRA comments on the proposed information collection requirements contained herein must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before December 10, 2012.
You may submit comments, identified by MB Docket No. 12–217 by any of the following methods:
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For additional information on this proceeding, contact Jeffrey Neumann,
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 12–217, adopted and released on August 3, 2012. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY–A257, Washington, DC 20554. This document will also be available via ECFS at
This document contains proposed information collection requirements. As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection(s). Public and agency comments are due December 10, 2012.
Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
To view or obtain a copy of this information collection request (ICR) submitted to OMB: (1) Go to this OMB/GSA Web page:
The proposed information collection requirements for this collection are as follows:
47 CFR 76.601(b) requires the operator of each cable television system shall conduct complete performance tests of that system at least twice each calendar year (at intervals not to exceed seven months), unless otherwise noted below. The performance tests shall be directed at determining the extent to which the system complies with all the technical standards set forth in § 76.605 and shall be as follows:
(1) For cable television systems with 1,000 or more subscribers but with 12,500 or fewer subscribers, proof-of-performance tests conducted pursuant to this section shall include measurements taken at six (6) widely separated points. However, within each cable system, one additional test point shall be added for every additional 12,500 subscribers or fraction thereof (e.g., 7 test points if 12,501 to 25,000 subscribers; 8 test points if 25,001 to 37,500 subscribers, etc.). In addition, for technically integrated portions of cable systems that are not mechanically continuous (e.g., employing microwave connections), at least one test point will be required for each portion of the cable system served by a technically integrated hub. The proof-of-performance test points chosen shall be balanced to represent all geographic areas served by the cable system and should include at least one test point in each local franchise area. At least one-third of the test points shall be representative of subscriber terminals most distant from the system input and from each microwave receiver (if microwave transmissions are employed), in terms of cable length. The measurements may be taken at convenient monitoring points in the cable network: provided, that data shall be included to relate the measured performance of the system as would be viewed from a nearby subscriber terminal. An identification of the instruments, including the makes, model numbers, and the most recent date of calibration, a description of the procedures utilized, and a statement of the qualifications of the person performing the tests shall also be included.
(2) Proof-of-performance tests to determine the extent to which a cable television system complies with the standards set forth in § 76.605(b)(3), (4), and (5) shall be made on each of the National Television System Committee (NTSC), or the analog television broadcast standard, or similar video channels of that system. Unless otherwise noted, proof-of-performance tests for all other standards in § 76.605 (b) shall be made on a minimum of five (5) channels for systems operating a total activated channel capacity of less than 550 MHz, and ten (10) channels for systems operating a total activated channel capacity of 550 MHz or greater. The channels selected for testing must be representative of all the channels within the cable television system.
(i) The operator of each cable television system shall conduct semi-annual proof-of-performance tests of that system, to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(4) as follows. The visual signal level on each channel shall be measured and recorded, along with the date and time of the measurement, once every six hours (at intervals of not less than five hours or no more than seven hours after the previous measurement), to include the warmest and the coldest times, during a 24-hour period in January or February and in July or August.
(ii) The operator of each cable television system shall conduct triennial proof-of-performance tests of its system to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(11).
(3) Proof-of-performance tests to determine the extent to which a cable television system complies with the standards set forth in § 76.605(c)(1) shall be made on each of the Quadrature Amplitude Modulation (QAM), or the digital cable transmission standard, or similar video channels of that system. Unless otherwise as noted, proof-of-performance tests for all other standards in § 76.605(c) shall be made on a minimum of five (5) channels for systems operating a total activated channel capacity of less than 550 MHz, and ten (10) channels for systems operating a total activated channel capacity of 550 MHz or greater. The channels selected for testing must be representative of all the channels within the cable television system.
(4) For cable televisions systems which operate both NTSC or similar and QAM of similar channels, proof-of-performance tests to determine the extent to which the cable televisions system complies with § 76.605(b)(1), (2), (6)–(11) and 76.605(c)(1) shall be apportioned relative to the proportion of channels allocated to each transmission type, except that at no time shall less than two channels of a particular type be tested.
47 CFR 76.605(e) requires that cable television systems distributing signals by methods other than 6 MHz NTSC or similar analog channels or 6 MHz QAM or similar channels on conventional coaxial or hybrid fiber-coaxial cable systems and which, because of their basic design, cannot comply with one or more of the technical standards set forth in paragraphs (b) and (c) of this section, may be permitted to operate upon Commission approval on a case-by-case basis. To obtain Commission approval, the operator must submit to the Commission its own proof-of-performance plan for ensuring subscribers receive good quality signals.
The NPRM proposes to create a digital equivalency for the Commission's analog rules. As a result, these rules are designed to capture the same respondents previously covered by the Commission's analog rules, but who have transitioned, or are transitioning, to digital operation. Further, this digital equivalency is designed to take an equivalent amount of time to fulfill. As a result, absent external factors, the hourly estimated burden will not change as a result of this NPRM (there will not be an increase or decrease to the hourly burden). However, widespread industry consolidation has resulted in fewer, though larger, respondents, resulting in a decrease in the total number of estimated responses.
The NPRM does not propose that the information to be submitted on the form be changed. The proposed information collection requirements for this collection are as follows: Section 76.1804 states a Multichannel Video Programming Distributor (MVPD) shall notify the Commission before transmitting any carrier of other signal component with an average power level across a 30 kHz bandwidth in any 2.5 millisecond time period equal to or greater than 10
(a) Legal name and local address of the MVPD;
(b) The names and FCC identifiers (e.g., CA0001) of the system communities affected, for a cable system, and the name and FCC identifier (e.g., CAB901), for other MVPDs;
(c) The names and telephone numbers of local system officials who are responsible for compliance with §§ 76.610 through 76.616 and § 76.1803;
(d) Carrier frequency, tolerance, and type of modulation of all carriers in the aeronautical bands at any location in the cable distribution system and the maximum of those average powers measured over a 2.5 kHz bandwidth as described in the introductory paragraph to this rule section;
(e) The geographical coordinates (in NAD83) of a point near the center of the system, together with the distance (in kilometers) from the designated point to the most remote point of the plant, existing or planned, that defines a circle enclosing the entire plant;
(f) Certification that the monitoring procedure used is in compliance with § 76.614 or description of the routine monitoring procedure to be used; and
(g) For MVPDs subject to § 76.611, the cumulative signal leakage index derived under § 76.611(a)(1) or the results of airspace measurements derived under § 76.611(a)(2), including a description of the method by which compliance with the basic signal leakage criteria is achieved and the method of calibrating the measurement equipment.
(h) Aeronautical Frequency Notifications, FCC Form 321, shall be personally signed either electronically or manually by the operator; by one of the partners, if the operator is a partnership; by an officer, if the operator is a corporation; by a member who is an officer, if the operator is an unincorporated association; or by any duly authorized employee of the operator.
(i) Aeronautical Frequency Notifications, FCC Form 321, may be signed by the operator's attorney in case of the operator's physical disability or of his absence from the United States. The attorney shall in that event separately set forth the reasons why the FCC Form 321 was not signed by the operator. In addition, if any matter is stated on the basis of the attorney's belief only (rather than the attorney's knowledge), the attorney shall separately set forth the reasons for believing that such statements are true.
(j) The FCC Registration Number (FRN).
The NPRM proposes to create a digital equivalency for the Commission's analog rules. As a result, these rules are designed to capture the same respondents previously covered by the Commission's analog rules, but who have transitioned, or are transitioning, to digital operation. Further, this digital equivalency is designed to take an equivalent amount of time to fulfill. As a result, absent external factors, the hourly estimated burden will not change as a result of this NPRM (there will not be an increase or decrease to the hourly burden). However, widespread industry consolidation has resulted in fewer, though larger, respondents, resulting in a decrease in the total number of estimated responses.
The NPRM does not propose that the form submitted pursuant to Section 76.1803 be changed. The NPRM proposes to create a digital equivalency for the Commission's analog rules. As a result, these rules are designed to capture the same respondents previously covered by the Commission's analog rules, but who have transitioned, or are transitioning, to digital operation. Further, this digital equivalency is designed to take an equivalent amount of time to fulfill. As a result, absent external factors, the hourly estimated burden will not change as a result of this NPRM (there will not be an increase or decrease to the hourly burden). However, widespread industry consolidation has resulted in fewer, though larger, respondents, resulting in a decrease in the total number of estimated responses.
1. With this Notice of Proposed Rulemaking (“NPRM”), we propose to update our cable television technical rules to facilitate the cable industry's widespread transition from analog to digital transmission systems. Specifically, we seek comment on our proposals to modernize and modify the Commission's proof-of-performance rules
2. The cable television industry is rapidly transitioning to digital service. The vast majority of cable system operators offer digital service,
3. We specifically examine several of our technical rules ranging from those that ensure cable customers receive a good quality signal to those that protect spectrum users from interference by cable systems. This examination is necessary because our cable television technical rules were largely established when analog technology was predominant and digital technology was rare. As a result, our current rules treat the use of digital technology as an exception rather than the rule. For example, our current proof-of-performance (or signal quality) rules permit cable operators that use “non-conventional” technologies (i.e., non-analog) to file individual waivers in which the Commission might substitute alternative technical standards to ensure a good quality signal.
4.
5. When the Commission adopted the current technical standards in 1992, it declined to extend the standards to the then-nascent practice of delivering cable television using digital signals.
6.
7. Below, we seek comment on proposed modifications to our cable television technical rules to specifically address the provision of digital cable service. The Commission especially seeks comment on the costs and benefits of the rule changes proposed below, along with data supporting the assessments. The Commission further welcomes comment on any other technical rules that may have become unworkable or ineffective as a result of the transition to digital, the diversification of transmission technologies now employed by the cable industry, or other developments in technology.
8. Our proof-of-performance rules require a cable operator to provide a good quality signal to its customers and enable the Commission to evaluate compliance with this requirement.
9. In this NPRM, we specifically address the issue of how to establish digital proof of performance standards that are similar in function to the analog proof of performance standards we adopted in the
10. We propose to adopt the standard established by the Society of Cable Telecommunications Engineers, the SCTE 40 Digital Cable Network Interface Standard, as the signal quality standard for QAM-based digital cable systems and, in addition, propose to require testing and documentation that demonstrates compliance with the metrics associated with this standard.
11. We continue to believe that testing and documentation is essential to ensuring compliance and permitting effective enforcement of our proof-of-performance rules. Therefore, in addition to adopting SCTE 40 2011 as the standard for digital proof-of-performance, we propose to require QAM-based cable operators to document the successful completion of proof-of performance testing to demonstrate compliance. SCTE 40 2011 contains tables with entries detailing the metrics for compliance. We tentatively conclude that operators should perform a test for each of the entries located on those tables dealing with the delivery of cable video signals, but not those dealing with upstream or downstream data performance.
12. We seek comment on whether to supplement, or otherwise modify, the SCTE 40 2011 standard for purposes of establishing our digital signal quality standard. In particular, we seek comment on whether we should adopt elements of the SCTE's recent Fourth Edition of its Measurement Recommended Practices for Cable Systems (SCTE Recommended Practice).
13. As noted above, ready sources of widely-followed industry standards exist on which we can base our rules for
14. We seek comment on whether there are appropriate industry standards against which to determine signal quality in non-QAM systems. In the absence of any industry-developed standards, is it possible to formulate a uniform signal quality standard, or set of standards, that could apply to the various types of non-QAM systems? In the absence of a uniform standard for measuring the electrical signal characteristics for non-QAM systems, we seek comment on alternative means to objectively measure and evaluate whether a non-QAM digital cable system is providing a “good quality signal.” We also ask commenters to address whether objective methods exist to establish if “good quality signals” are reaching cable subscribers of non-QAM systems, either as a complement to, or in place of, regulating carrier signal quality, including: (1) An analysis of errors in the transmission of the compressed video stream, (2) a means by which to measure perceived visual signal quality, (3) a combination of the two, or (4) some alternative method. For example, we ask commenters to consider whether a standard regarding transmission errors would be useful in addressing audio-related problems, such as a lack of synchronization of the audio and video signal, or closed captioning related problems, such as poor or missing caption data. In this regard, we note that the vast majority of cable systems encode video using MPEG–2 or MPEG–4 AVC.
15. To the extent that any type of uniform objective measurement is not possible to encompass the variety of existing or future non-QAM system platforms, we propose to establish a case-by-case approach whereby the non-QAM digital cable systems would demonstrate that they are providing a “good quality signal” to their customers by submitting a plan for Commission approval. As proposed for QAM systems, the non-QAM system proof-of-performance plan must include a testing and documentation component. This case-by-case approach would replace the existing case-by-case approach for cable systems using “non-conventional” techniques.
16. In addition to proposing to adopt a new standard for QAM-based digital cable systems and seeking comment on how to determine signal quality on non-QAM systems, we also propose some minor updates to our current proof of performance testing and recordkeeping rules. Some of these proposed changes would only affect digital systems and others would also apply to analog systems.
17. We propose to simplify the formula by which both analog and QAM digital operators determine how many channels must be tested to ensure compliance with the proof-of-
18. Although cable operators are increasingly transitioning to all-digital systems, most cable systems still deliver both analog and digital channels.
19. Currently, our analog proof-of-performance rules only apply to each NTSC or similar downstream cable television channel.
20. Our current rules specify testing requirements for all cable television systems, regardless of whether they are analog or digital.
21. We believe that the physical boundaries of a system—that is, the separation of one system from another—are not generally relevant to the purpose of proof-of-performance testing. Rather, the rules are subscriber focused, and so long as good quality signals are being delivered to subscribers, their specific origin need not be precisely defined. We propose, however, to modify the rules for the number of test points. While the Commission has preempted local franchising authorities from establishing their own standards,
22. We propose to adopt recordkeeping obligations on digital cable operators identical to those placed on analog cable operators. Section 76.1704(a) of our rules provides that proof-of-performance test results shall be maintained on file at the operator's local business office for at least five years and shall be made available for inspection by the Commission or the local franchising authority, upon request.
23. We seek input regarding the extent to which a cable system's compliance with our technical standards depends on third parties. Are there factors outside of a cable system's control that could result in a degradation of signal quality? For example, to what extent does the signal quality received by cable subscribers depend on the reliability of networks controlled by third parties or on the programmer's original encoding of the material? Can a cable system contract with third parties to ensure compliance with our technical standards? What impact, if any, should a cable system's reliance on third parties have on our technical standards?
24. We also seek comment on what role, if any, set-top boxes should play in the Commission's efforts to ensure consumers receive good quality signals.
25. Finally, we also propose to rationalize the numbering scheme in our rules to accommodate our proposed rule changes. Specifically, we propose to relocate the analog proof of performance rules in a new § 76.605(b) and create § 76.605(c) for digital rules.
26. MVPDs that operate coaxial cable plants (“coaxial cable systems”) use frequencies allocated for myriad over-the-air services within their system. Under ideal circumstances, those signals are confined within the cable system and do not cause interference with the over-the-air users of those frequencies. However, under certain circumstances, a coaxial cable plant can “leak” and interfere with over-the-air users of spectrum.
27. In the wake of the
28. The rules established in 1984 by the
29. The first component of the Commission's signal leakage regime is the Aeronautical Frequency Notification (“AFN”). Prior to commencing operation in the aeronautical radio frequency bands above an average power level equal to or greater than 10
30. We propose to use the same power threshold and measurement window to trigger the notification requirement for AFN as the power threshold and measurement window that triggers the prohibition around the 406 MHz emergency frequencies.
31. Today, the vast majority of coaxial cable systems maintain an AFN on file with the Commission.
32. We propose not to apply the channel frequency offset requirement to digital signals as digital signals simply cannot be offset in the way analog frequencies can. Channel frequency offsets have always played a critical role in minimizing the interference potential from analog coaxial cable systems to both aircraft communication and aircraft navigation services, such as the Instrument Landing System (ILS) and VHF Omnidirectional Range service (VOR). The power levels of an analog television channel are not uniform across the bandwidth; rather, power is significantly higher at the center frequencies of each of the subcarriers contained within the channel. The Commission's rules prohibit the subcarriers from lining up directly with the ILS, VOR, or communications carriers to diminish the possibility that a leak will cause harmful interference to these safety services.
33. The Commission must address the implication of not having the interference protection afforded by the channel frequency offset requirement for digital channels. For analog signals, channel frequency offsets function to lower the strength of an undesired signal and our rules factored this offset into the signal leakage limit calculation.
34. We therefore propose to amend our rules to account for this increase of 1.2 dB to interference from digital signals. The general signal leakage requirement, stated in § 76.605(a)(12),
35. For cumulative signal leakage, there are three thresholds that we propose adjusting to address digital transmission. They are the threshold at which the rules become applicable, the threshold at which leaks must be included in the cumulative leakage index (“CLI”) calculation, and the maximum leakage and CLI permissible. Under § 76.610, the CLI rules apply where operations in the aeronautical frequency bands exceed an average power level of 100 microwatts (10
36. We seek comment on several additional issues associated with the appropriate regulation of signal leakage with regard to digital transmissions. First, § 76.609(h) contains a detailed methodology for performing signal leakage measurements.
37. Next, we address the issues of what type of signal, analog or digital, an operator must test and what signal leakage limit they must adhere to. The decreased signal levels we propose in the section above are designed to be equivalent in interference potential to analog signals. Accordingly, we propose to allow operators to choose to test either an analog carrier using either their existing analog signal leakage test equipment and an offset analog signal, or a digital carrier using new digital signal leakage test equipment.
38. We seek comment on whether our signal leakage performance criteria rules are sufficient, whether or not we need to expand the frequencies protected, and whether to maintain the requirement that the test frequency be located within the 108–137 MHz band.
39. Finally, we propose limiting, or potentially eliminating, the I
40. We further propose edits to remove references to effective dates that have passed, make editorial corrections, delete obsolete rules, update various technical standards that are incorporated by reference into our rules, and clarify language in Part 76 of our rules. The proposed changes are intended to set forth existing compliance requirements more clearly for MVPDs, franchising authorities, and the public. We seek comment on any other requirements that have been implemented by Commission order, but that have inadvertently been omitted from our rules.
41. Specifically, we propose to remove obsolete references to dates in §§ 76.56(b), 76.57(e), 76.64(a), 76.105(b), 76.127(f), 76.309(c)(1), 76.606, 76.1204(a), 76.1601, and 76.1602. We propose to correct citation references in §§ 76.56(a)(1)(i), 76.612(b)(2), 76.1508, 76.1509, 76.1510, and 76.1701(d). We propose to correct the numbering and references in Section 76.1205, and to eliminate the duplicative reporting requirements found in § 76.1610(f) and (g). We seek comment on these proposed changes, and encourage commenters to propose any other non-substantive changes to Part 76 of our rules that will correct errors or more clearly convey the Commission's intent.
42. We propose to delete § 76.1909, which was created as part of the Commission's Broadcast Flag rules in 2003, since it is obsolete and without legal effect.
43. We propose to update the various incorporations by reference in Part 76 to the most current versions made available by the relevant standards bodies.
(1) ATSC A/65D: “ATSC Standard: Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision D),” IBR used for § 76.640.
(2) CEA–542–C, “CEA Standard: Cable Television Channel Identification Plan,” IBR used for § 76.605.
(3) CEA–931–C, “Remote Control Command Pass-through Standard for Home Networking,” IBR used for § 76.640.
(4) ANSI/SCTE 26 2010 (formerly DVS 194): “Home Digital Network Interface Specification with Copy Protection,” IBR used for § 76.640.
(5) SCTE 28 2012 (formerly DVS 295): “Host-POD Interface Standard,” IBR used for § 76.640.
(6) ANSI/SCTE 40 2011 (formerly DVS 313), “Digital Cable Network Interface Standard,” IBR used for §§ 76.605 and 76.640.
(7) ANSI/SCTE 41 2011 (formerly DVS 301): “POD Copy Protection System,” IBR used for § 76.640.
(8) ANSI/SCTE 54 2009 (formerly DVS 241), “Digital Video Service Multiplex and Transport System Standard for Cable Television,” IBR used for § 76.640.
(9) ANSI/SCTE 65 2008 (formerly DVS 234), “Service Information Delivered Out-of-Band for Digital Cable Television,” 2008, IBR used for § 76.640.
44. Finally, we propose to amend the note to § 76.55(d).
45. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”)
46. With this NPRM, we propose to update our cable television technical rules to facilitate the cable industry's widespread transition from analog to digital transmission systems. Specifically, we seek comment on our proposals to modernize and modify the Commission's proof-of-performance rules and basic signal leakage performance criteria. In addition, we propose modifications throughout Part 76 to remove outdated language, correct citations, and make other minor or non-substantive updates. We seek to adopt clear and effective rules that reflect technological advancements in the cable
47.
48.
49. Finally, by revising and updating the Commission's rules, the Commission seeks to make it easier for MVPDs to understand the Commission's rules, and therefore to make compliance more straightforward. By reducing the burden associated with reading and interpreting the Commission's rules, we believe that small entities will need to expend fewer resources to ensure compliance.
50. The authority for the action proposed in this rulemaking is contained in sections 1, 4(i), 4(j), 301, 302a, 303, 307, 308, 624(e), and 624A of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 302a, 303, 304, 307, 308, 544(e), and 544a.
51. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules.
52.
53.
54.
55.
56.
57. The rules proposed in the NPRM will impose additional reporting, recordkeeping, and compliance requirements on cable operators. Currently, all cable operators are required to perform proof-of-performance testing twice each year, in the warmest and coldest parts of the year, to document the successful completion of those tests, and to maintain the records in their public file for five years. Further, all operators of coaxial cable systems, which includes not just cable operators but non-cable operators, such as PCOs, Open Video Systems, SMATV operators, are required to perform signal leakage testing four times per year, to document the results of those test, to maintain those records in their public file for five years, and to submit the results of one of those tests on FCC Form 320 to the Commission. The NPRM proposes tests to new digital standards, to be performed by operators of hybrid and all-digital cable systems, but maintains the existing recordkeeping requirements.
58. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
59.
60. With respect to the modification of technical standards for digital cable transmission, the Commission considered maintaining the
61.
62. We welcome comments that suggest modifications of any proposal if based on evidence of potential differential impact on smaller entities. We also seek comment on alternatives to the proposed rules that would assist small entities while ensuring the Commission's goals of providing good quality signals to consumers and protecting aeronautical communications and spectrum users from interference are met.
63. None.
64. This NPRM has been analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”)
65.
66.
67. Accordingly,
68.
Cable television, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 part 76 as follows:
1. The Authority Citation for part 76 continues to read as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
2. Revise § 76.55 Note to paragraph (d) to read as follows:
For the purposes of this section, for over-the-air broadcast, a good quality signal shall mean a signal level of either –45 dBm for analog VHF signals, –49 dBm for analog UHF signals, or –61 dBm for digital signals (at all channels) at the input terminals of the signal processing equipment.
3. Revise § 76.56 (a)(1)(i) and (b) introductory text to read as follows:
(a) * * *
(1) * * *
(i) Systems with 12 or fewer usable activated channels, as defined in § 76.5(oo), shall be required to carry the signal of one such station;
(b)
4. Revise § 76.57(e) to read as follows:
(e) At the time a local commercial station elects must-carry status pursuant to § 76.64, such station shall notify the cable system of its choice of channel position as specified in paragraphs (a), (b), and (d) of this section. A qualified NCE station shall notify the cable system of its choice of channel position when it requests carriage.
5. Revise § 76.64(a) to read as follows:
(a) No multichannel video programming distributor shall retransmit the signal of any commercial broadcasting station without the express authority of the originating station, except as provided in paragraph (b) of this section.
6. Revise § 76.105(b) introductory text to read as follows:
(b) Broadcasters entering into contracts which contain syndicated exclusivity protection shall notify affected cable systems within sixty calendar days of the signing of such a contract. A broadcaster shall be entitled to exclusivity protection beginning on the later of:
7. In § 76.127, remove paragraph (f).
8. Revise § 76.309(c) introductory text to read as follows:
(c) Cable operators are subject to the following customer service standards:
9. Revise § 76.601(b) to read as follows:
(b) The operator of each cable television system shall conduct complete performance tests of that system at least twice each calendar year (at intervals not to exceed seven months), unless otherwise noted below. The performance tests shall be directed at determining the extent to which the system complies with all the technical standards set forth in § 76.605 and shall be as follows:
(1) For cable television systems with 1000 or more subscribers but with 12,500 or fewer subscribers, proof-of-performance tests conducted pursuant to this section shall include measurements taken at six (6) widely separated points. However, within each cable system, one additional test point shall be added for every additional 12,500 subscribers or fraction thereof (e.g., 7 test points if 12,501 to 25,000 subscribers; 8 test points if 25,001 to 37,500 subscribers, etc.). In addition, for technically integrated portions of cable systems that are not mechanically continuous (e.g., employing microwave connections), at least one test point will be required for each portion of the cable system served by a technically integrated hub. The proof-of-performance test points chosen shall be balanced to represent all geographic areas served by the cable system and should include at least one test point in each local franchise area. At least one-third of the test points shall be representative of subscriber terminals most distant from the system input and
(2) Proof-of-performance tests to determine the extent to which a cable television system complies with the standards set forth in § 76.605(b)(3), (4), and (5) shall be made on each of the NTSC or similar video channels of that system. Unless otherwise as noted, proof-of-performance tests for all other standards in § 76.605(b) shall be made on a minimum of five (5) channels for systems operating a total activated channel capacity of less than 550 MHz, and ten (10) channels for systems operating a total activated channel capacity of 550 MHz or greater. The channels selected for testing must be representative of all the channels within the cable television system.
(i) The operator of each cable television system shall conduct semi-annual proof-of-performance tests of that system, to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(4) as follows. The visual signal level on each channel shall be measured and recorded, along with the date and time of the measurement, once every six hours (at intervals of not less than five hours or no more than seven hours after the previous measurement), to include the warmest and the coldest times, during a 24-hour period in January or February and in July or August.
(ii) The operator of each cable television system shall conduct triennial proof-of-performance tests of its system to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(11).
(3) Proof-of-performance tests to determine the extent to which a cable television system complies with the standards set forth in § 76.605(c)(1) shall be made on each of the QAM or similar video channels of that system. Unless otherwise as noted, proof-of-performance tests for all other standards in § 76.605(c) shall be made on a minimum of five (5) channels for systems operating a total activated channel capacity of less than 550 MHz, and ten (10) channels for systems operating a total activated channel capacity of 550 MHz or greater. The channels selected for testing must be representative of all the channels within the cable television system.
(4) For cable televisions systems which operate both NTSC or similar and QAM of similar channels, proof-of-performance tests to determine the extent to which the cable televisions system complies with § 76.605(b)(1), (2), (6) through (11) and 76.605(c)(1) shall be apportioned relative to the proportion of channels allocated to each transmission type, except that at no time shall less than two channels of a particular type be tested.
10. Revise § 76.602 to read as follows:
(a) The materials listed in this section are incorporated by reference in this part. These incorporations by reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as they exist on the date of the approval, and notice of any change in these materials will be published in the
(1) ATSC A/65D: “ATSC Standard: Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision D),” April 14, 2009, IBR approved for § 76.640.
(2) ATSC A/85:2011 “ATSC Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television,” (July 25, 2011) (“ATSC A/85 RP”), IBR approved for § 76.607.
(c) CEA. The following materials are available from Consumer Electronics Association (CEA), 1919 S. Eads St., Arlington, VA 22202; phone: 866–858–1555; or online at
(1) CEA–542–C, “CEA Standard: Cable Television Channel Identification Plan,” July 2009, IBR approved for § 76.605.
(2) CEA–931–C, “Remote Control Command Pass-through Standard for Home Networking,” 2007, IBR approved for § 76.640.
(d) SCTE. The following materials are available from Society of Cable Telecommunications Engineers (SCTE), 140 Philips Road, Exton, PA 19341–1318; phone: 800–542–5040; or online at
(1) ANSI/SCTE 26 2010 (formerly DVS 194): “Home Digital Network Interface Specification with Copy Protection,” 2010, IBR approved for § 76.640.
(2) ANSI/SCTE 28 2012 (formerly DVS 295): “Host-POD Interface Standard,” 2012, IBR approved for § 76.640.
(3) ANSI/SCTE 40 2011 (formerly DVS 313), “Digital Cable Network Interface Standard,” 2011, IBR approved for §§ 76.605 and 76.640.
(4) ANSI/SCTE 41 2011 (formerly DVS 301): “POD Copy Protection System,” 2011, IBR approved for § 76.640.
(5) ANSI/SCTE 54 2009 (formerly DVS 241), “Digital Video Service Multiplex and Transport System Standard for Cable Television,” 2009, IBR approved for § 76.640.
(6) ANSI/SCTE 65 2008 (formerly DVS 234), “Service Information Delivered Out-of-Band for Digital Cable Television,” 2008, IBR approved for § 76.640.
(e) Some standards listed above are also available for purchase from the following sources:
(1) American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036; phone: 212–642–4980; or online at
(2) Global Engineering Documents (standards reseller), 15 Inverness Way East, Englewood, CO 80112; phone: 800–854–7179; or online at
11. Revise § 76.605 to read as follows:
(a) The following requirements apply to the performance of a cable television system as measured at any subscriber terminal with a matched impedance at the termination point or at the output of the modulating or processing equipment (generally the headend) of the cable television system or otherwise noted. The requirements of paragraph (b) of this section are applicable to each NTSC or similar video downstream cable
(b) For each NTSC or similar video downstream cable television channel in the system:
(1)(i) The cable television channels delivered to the subscriber's terminal shall be capable of being received and displayed by TV broadcast receivers used for off-the-air reception of TV broadcast signals, as authorized under part 73 of this chapter; and
(ii) Cable television systems shall transmit signals to subscriber premises equipment on frequencies in accordance with the channel allocation plan set forth in CEA–542–C: “Standard: Cable Television Channel Identification Plan,” (Incorporated by reference, see § 76.602).
(2) The aural center frequency of the aural carrier must be 4.5 MHz ± 5 kHz above the frequency of the visual carrier at the output of the modulating or processing equipment of a cable television system, and at the subscriber terminal.
(3) The visual signal level, across a terminating impedance which correctly matches the internal impedance of the cable system as viewed from the subscriber terminal, shall not be less than 1 millivolt across an internal impedance of 75 ohms (0 dBmV). Additionally, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber tap, it shall not be less than 1.41 millivolts across an internal impedance of 75 ohms (+3 dBmV). (At other impedance values, the minimum visual signal level, as viewed from the subscriber terminal, shall be the square root of 0.0133 (Z) millivolts and, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber tap, shall be 2 times the square root of 0.00662(Z) millivolts, where Z is the appropriate impedance value.)
(4) The visual signal level on each channel, as measured at the end of a 30 meter cable drop that is connected to the subscriber tap, shall not vary more than 8 decibels within any six-month interval, which must include four tests performed in six-hour increments during a 24-hour period in July or August and during a 24-hour period in January or February, and shall be maintained within:
(i) 3 decibels (dB) of the visual signal level of any visual carrier within a 6 MHz nominal frequency separation;
(ii) 10 dB of the visual signal level on any other channel on a cable television system of up to 300 MHz of cable distribution system upper frequency limit, with a 1 dB increase for each additional 100 MHz of cable distribution system upper frequency limit (e.g., 11 dB for a system at 301–400 MHz; 12 dB for a system at 401–500 MHz, etc.); and
(iii) A maximum level such that signal degradation due to overload in the subscriber's receiver or terminal does not occur.
(5) The rms voltage of the aural signal shall be maintained between 10 and 17 decibels below the associated visual signal level. This requirement must be met both at the subscriber terminal and at the output of the modulating and processing equipment (generally the headend). For subscriber terminals that use equipment which modulate and remodulate the signal (e.g., baseband converters), the rms voltage of the aural signal shall be maintained between 6.5 and 17 decibels below the associated visual signal level at the subscriber terminal.
(6) The amplitude characteristic shall be within a range of ±2 decibels from 0.75 MHz to 5.0 MHz above the lower boundary frequency of the cable television channel, referenced to the average of the highest and lowest amplitudes within these frequency boundaries. The amplitude characteristic shall be measured at the subscriber terminal.
(7) The ratio of RF visual signal level to system noise shall not be less than 43 decibels. For class I cable television channels, the requirements of this section are applicable only to:
(i) Each signal which is delivered by a cable television system to subscribers within the predicted Grade B or noise-limited service contour, as appropriate, for that signal;
(ii) Each signal which is first picked up within its predicted Grade B or noise-limited service contour, as appropriate;
(iii) Each signal that is first received by the cable television system by direct video feed from a TV broadcast station, a low power TV station, or a TV translator station.
(8) The ratio of visual signal level to the rms amplitude of any coherent disturbances such as intermodulation products, second and third order distortions or discrete-frequency interfering signals not operating on proper offset assignments shall be as follows:
(i) The ratio of visual signal level to coherent disturbances shall not be less than 51 decibels for noncoherent channel cable television systems, when measured with modulated carriers and time averaged; and
(ii) The ratio of visual signal level to coherent disturbances which are frequency-coincident with the visual carrier shall not be less than 47 decibels for coherent channel cable systems, when measured with modulated carriers and time averaged.
(9) The terminal isolation provided to each subscriber terminal:
(i) Shall not be less than 18 decibels. In lieu of periodic testing, the cable operator may use specifications provided by the manufacturer for the terminal isolation equipment to meet this standard; and
(ii) Shall be sufficient to prevent reflections caused by open-circuited or short-circuited subscriber terminals from producing visible picture impairments at any other subscriber terminal.
(10) The peak-to-peak variation in visual signal level caused by undesired low frequency disturbances (hum or repetitive transients) generated within the system, or by inadequate low frequency response, shall not exceed 3 percent of the visual signal level. Measurements made on a single channel using a single unmodulated carrier may be used to demonstrate compliance with this parameter at each test location.
(11) The following requirements apply to the performance of the cable television system as measured at the output of the modulating or processing equipment (generally the headend) of the system:
(i) The chrominance-luminance delay inequality (or chroma delay), which is the change in delay time of the chrominance component of the signal relative to the luminance component, shall be within 170 nanoseconds.
(ii) The differential gain for the color subcarrier of the television signal, which is measured as the difference in amplitude between the largest and smallest segments of the chrominance signal (divided by the largest and expressed in percent), shall not exceed ±20%.
(iii) The differential phase for the color subcarrier of the television signal which is measured as the largest phase difference in degrees between each segment of the chrominance signal and reference segment (the segment at the blanking level of 0 IRE), shall not exceed ±10 degrees.
(c) For each downstream QAM or similar video downstream cable television channel in the system the technical requirements of ANSI/SCTE 40 2011 (Formerly DVS 313): “Digital Cable Network Interface Standard” (incorporated by reference, see § 76.602) shall apply, provided:
(1) For purposes of demonstrating compliance with proof-of-performance, the RF transmission characteristics of Table 4 shall be tested and recorded pursuant to §§ 76.601 and 76.1706.
(2) For purposes of demonstrating compliance with proof-of-performance, the Adjacent Channel Characteristics of Table 6 and the Nominal Relative Carrier Power Levels of Table 5 shall be tested and recorded pursuant to §§ 76.601 and 76.1706.
(d) As an exception to the general provision requiring measurements to be made at subscriber terminals, and without regard to the type of signals carried by the cable television system, signal leakage shall be limited as follows:
Where analog NTSC or similar signals are measured in accordance with the procedures outlined in § 76.609(h).
(e) Cable television systems distributing signals by methods other than 6 MHz NTSC or similar analog channels or 6 MHz QAM or similar channels on conventional coaxial or hybrid fiber-coaxial cable systems and which, because of their basic design, cannot comply with one or more of the technical standards set forth in paragraphs (b) and (c) of this section, may be permitted to operate upon Commission approval on a case-by-case basis. To obtain Commission approval, the operator must submit to the Commission its own proof-of-performance plan for ensuring subscribers receive good quality signals.
Local franchising authorities of systems serving fewer than 1000 subscribers may adopt standards less stringent than those in § 76.605(b) and (c). Any such agreement shall be reduced to writing and be associated with the system's proof-of-performance records.
For systems serving rural areas as defined in § 76.5, the system may negotiate with its local franchising authority for standards less stringent than those in §§ 76.605(b)(3), 76.605(b)(7), 76.605(b)(8), 76.605(b)(10) and 76.605(b)(11). Any such agreement shall be reduced to writing and be associated with the system's proof-of-performance records.
The requirements of this section shall not apply to devices subject to the TV interface device rules under part 15 of this chapter.
Should subscriber complaints arise from a system failing to meet § 76.605(b)(10), the cable operator will be required to remedy the complaint and perform test measurements on § 76.605(b)(10) containing the full number of channels as indicated in § 76.601(b)(2) at the complaining subscriber's terminal. Further, should the problem be found to be system-wide, the Commission may order that the full number of channels as indicated in § 76.601(b)(2) be tested at all required locations for future proof-of-performance tests.
No State or franchising authority may prohibit, condition, or restrict a cable system's use of any type of subscriber equipment or any transmission technology.
12. Revise § 76.606 to read as follows:
(a) The operator of each cable television system shall not take any action to remove or alter closed captioning data contained on line 21 of the vertical blanking interval.
(b) The operator of each cable television system shall deliver intact closed captioning data contained on line 21 of the vertical blanking interval, as it arrives at the headend or from another origination source, to subscriber terminals and (when so delivered to the cable system) in a format that can be recovered and displayed by decoders meeting § 79.101 of this chapter.
13. Revise § 76.610 to read as follows:
The provisions of §§ 76.605(d), 76.611, 76.612, 76.613, 76.614, 76.616, 76.617, 76.1803 and 76.1804 are applicable to all MVPDs (cable and non-cable) transmitting analog carriers or other signal components carried at an average power level equal to or greater than 10
14. Revise § 76.611(a)(1), (a)(2), and (e) to read as follows:
(a) * * *
(1) prior to carriage of signals in the aeronautical radio bands and at least once each calendar year, with no more than 12 months between successive tests thereafter, based on a sampling of at least 75% of the cable strand, and including any portion of the cable system which are known to have or can reasonably be expected to have less leakage integrity than the average of the system, the cable operator demonstrates compliance with a cumulative signal leakage index by showing either that (i) 10 log I
The sum is carried over all leaks i detected in the cable examined; or
(2) prior to carriage of signals in the aeronautical radio bands and at least once each calendar year, with no more than 12 months between successive tests thereafter, the cable operator demonstrates by measurement in the airspace that at no point does the field strength generated by the cable system exceed 10 microvolts per meter (µV/m) RMS for an offset analog signal or 8.7 microvolts per meter (µV/m) RMS for a digital signal at an altitude of 450 meters above the average terrain of the cable system. The measurement system (including the receiving antenna) shall be calibrated against a known field of 10 µV/m RMS produced by a well characterized antenna consisting of orthogonal resonant dipoles, both parallel to and one quarter wavelength above the ground plane of a diameter of two meters or more at ground level. The dipoles shall have centers collocated and be excited 90 degrees apart. The half-power bandwidth of the detector shall be 25 kHz. If an aeronautical receiver is used for this purpose it shall meet the standards of the Radio Technical Commission for Aeronautics (RCTA) for aeronautical communications receivers. The aircraft antenna shall be horizontally polarized. Calibration shall be made in the community unit or, if more than one, in any of the community units of the physical system within a reasonable time period to performing the measurements. If data is recorded digitally the 90th percentile level of points recorded over the cable system shall not exceed 8.7 µV/m or 10 µV/m RMS as indicated above; if analog recordings is used the peak values of the curves, when smoothed according to good engineering practices, shall not exceed 8.7 µV/m or 10 µV/m RMS for digital or analog leakage, respectively.
(e) Prior to providing service to any subscriber on a new section of cable plant, the operator shall show compliance with either: (1) The basic signal leakage criteria in accordance with paragraph (a)(1) or (a)(2) of this section for the entire plant in operation or (2) a showing shall be made indicating that no individual leak in the new section of the plant exceeds 20 µV/m at 3 meters in accordance with § 76.609 of the rules for analog systems or 17.4 µV/m at 3 meters for digital systems.
15. Revise § 76.612 introductory text to read as follows:
All cable television systems which operate analog NTSC or similar channels in the frequency bands 108–137 MHZ and 225–400 MHz shall comply with the following frequency separation standards for each NTSC or similar channel:
16. Revise § 76.614 to read as follows:
Cable television operators transmitting carriers in the frequency bands 108–137 and 225–400 MHz shall provide for a program of regular monitoring for signal leakage by substantially covering the plant every three months. The incorporation of this monitoring program into the daily activities of existing service personnel in the discharge of their normal duties will generally cover all portions of the system and will therefore meet this requirement. Monitoring equipment and procedures utilized by a cable operator shall be adequate to detect a leakage source from an analog signal which produces a field strength in these bands of 20 µV/m or greater at a distance of 3 meters and from a digital signal which produces a field strength in these bands of 17.4 µV/m or greater at a distance of 3 meters. During regular monitoring, any analog leakage source which produces a field strength of 20 µV/m or greater at a distance of 3 meters or digital leakage source which produces a field strength of 17.4 µV/m or greater at a distance of 3 meters in the aeronautical radio frequency bands shall be noted and such leakage sources shall be repaired within a reasonable period of time.
Section 76.1706 contains signal leakage recordkeeping requirements applicable to cable operators.
17. Revise § 76.640(b) to read as follows:
(b) Cable operators shall support unidirectional digital cable products, as defined in § 15.123 of this chapter, through the provisioning of Point of Deployment modules (PODs) and services, as follows:
(1) Digital cable systems with an activated channel capacity of 750 MHz or greater shall comply with the following technical standards and requirements:
(i) ANSI/SCTE 40 2011 (formerly DVS 313): “Digital Cable Network Interface Standard” (incorporated by reference, see § 76.602), provided that the “transit delay for most distant customer” requirement in Table 4.3 is not mandatory.
(ii) ANSI/SCTE 65 2008 (formerly DVS 234): “Service Information Delivered Out-of-Band for Digital Cable Television” (incorporated by reference, see § 76.602), provided however that the referenced Source Name Subtable shall be provided for Profiles 1, 2, and 3.
(iii) ANSI/SCTE 54 2009 (formerly DVS 241): “Digital Video Service Multiplex and Transport System Standard for Cable Television” (incorporated by reference, see § 76.602).
(iv) For each digital transport stream that includes one or more services carried in-the-clear, such transport stream shall include virtual channel data in-band in the form of ATSC A/65D: “ATSC Standard: Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision D)” (incorporated by reference, see § 76.602), when available from the content provider. With respect to in-band transport:
(A) * * *
(B) * * *
(C) The format of event information data format shall conform to ATSC A/65D: “ATSC Standard: Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision D)” (incorporated by reference, see § 76.602);
(D) * * *
(E) * * *
(v) * * *
(A) * * *
(B) A virtual channel table shall be provided via the extended channel interface from the POD module. Tables to be included shall conform to ANSI/SCTE 65 2008 (formerly DVS 234): “Service Information Delivered Out-of-Band for Digital Cable Television” (incorporated by reference, see § 76.602).
(C) Event information data when present shall conform to ANSI/SCTE 65 2008 (formerly DVS 234): “Service Information Delivered Out-of-Band for Digital Cable Television” (incorporated
(D) * * *
(E) * * *
(2) * * *
(i) ANSI/SCTE 28 2012 (formerly DVS 295): “Host-POD Interface Standard” (incorporated by reference, see § 76.602).
(ii) SCTE 41 2011 (formerly DVS 301): “POD Copy Protection System” (incorporated by reference, see § 76.602).
18. Amend § 76.1204 by revising paragraph (a), removing paragraph (e), and redesignating (f) as paragraph (e) and revising newly redesignated paragraph (e) to read as follows:
(a)(1) A multichannel video programming distributor that utilizes navigation devices to perform conditional access functions shall make available equipment that incorporates only the conditional access functions of such devices. No multichannel video programming distributor subject to this section shall place in service new navigation devices for sale, lease, or use that perform both conditional access and other functions in a single integrated device.
(e) Paragraphs (a)(1), (b), and (c) of this section shall not apply to the provision of any navigation device that:
(1) Employs conditional access mechanisms only to access analog video programming;
(2) Is capable only of providing access to analog video programming offered over a multichannel video programming distribution system; and
(3) Does not provide access to any digital transmission of multichannel video programming or any other digital service through any receiving, decoding, conditional access, or other function, including any conversion of digital programming or service to an analog format.
19. Revise § 76.1205(b) introductory text and paragraph (b)(5) to read as follows:
(b) A multichannel video programming provider that is subject to the requirements of § 76.640 must:
(5) Separately disclose to consumers in a conspicuous manner with written information provided to customers in accordance with § 76.1602, with written or oral information at consumer request, and on Web sites or billing inserts;
(i) Any assessed fees for the rental of single and additional CableCARDs and the rental of operator-supplied navigation devices; and,
(ii) If such provider includes equipment in the price of a bundled offer of one or more services, the fees reasonably allocable to:
(A) The rental of single and additional CableCARDs; and
(B) The rental of operator-supplied navigation devices.
(iii) CableCARD rental fees shall be priced uniformly throughout a cable system by such provider without regard to the intended use in operator-supplied or consumer-owned equipment. No service fee shall be imposed on a subscriber for support of a subscriber-provided device that is not assessed on subscriber use of an operator-provided device.
(iv) For any bundled offer combining service and an operator-supplied navigation device into a single fee, including any bundled offer providing a discount for the purchase of multiple services, such provider shall make such offer available without discrimination to any customer that owns a navigation device, and, to the extent the customer uses such navigation device in lieu of the operator-supplied equipment included in that bundled offer, shall further offer such customer a discount from such offer equal to an amount not less than the monthly rental fee reasonably allocable to the lease of the operator-supplied navigation device included with that offer. For purposes of this section, in determining what is “reasonably allocable,” the Commission will consider in its evaluation whether the allocation is consistent with one or more of the following factors:
(A) An allocation determination approved by a local, state, or Federal government entity;
(B)The monthly lease fee as stated on the cable system rate card for the navigation device when offered by the cable operator separately from a bundled offer; and
(C) The actual cost of the navigation device amortized over a period of no more than 60 months.
20. Revise § 76.1508 (a) to read as follows:
(a) Sections 76.92 through 76.95 shall apply to open video systems in accordance with the provisions contained in this section.
21. Revise § 76.1509 to read as follows:
(a) Sections 76.101 through 76.110 shall apply to open video systems in accordance with the provisions contained in this section.
(b) Any provision of § 76.101 that refers to a “cable community unit” shall apply to an open video system.
(c) Any provision of § 76.105 that refers to a “cable system operator” or “cable television system operator” shall apply to an open video system operator. Any provision of § 76.105 that refers to a “cable system” or “cable television system” shall apply to an open video system except § 76.105(c) which shall apply to an open video system operator. Open video system operators shall make all notifications and information regarding exercise of syndicated program exclusivity rights immediately available to all appropriate video programming provider on the system. An open video system operator shall not be subject to sanctions for any violation of these rules by an unaffiliated program supplier if the operator provided proper notices to the program supplier and subsequently took prompt steps to stop the distribution of the infringing program once it was notified of a violation.
(d) Any provision of § 76.106 that refers to a “cable community” shall apply to an open video system community. Any provision of § 76.106 that refers to a “cable community unit” or “community unit” shall apply to an open video system or that portion of an open video system that operates or will operate within a separate and distinct community or municipal entity (including unincorporated communities within unincorporated areas and including single, discrete unincorporated areas). Any provision of §§ 76.106 through 76.108 that refers to a “cable system” shall apply to an open video system.
(e) Any provision of § 76.109 that refers to “cable television” or a “cable system” shall apply to an open video system.
(f) Any provision of § 76.110 that refers to a “community unit” shall apply to an open video system or that portion of an open video system that is affected by this rule.
22. Revise § 76.1510 to read as follows:
The following sections within part 76 shall also apply to open video systems: §§ 76.71, 76.73, 76.75, 76.77, 76.79,
23. Revise § 76.1601 to read as follows:
A cable operator shall provide written notice to any broadcast television station at least 30 days prior to either deleting from carriage or repositioning that station. Such notification shall also be provided to subscribers of the cable system.
No deletion or repositioning of a local commercial television station shall occur during a period in which major television ratings services measure the size of audiences of local television stations. For this purpose, such periods are the four national four-week ratings periods—generally including February, May, July and November—commonly known as audience sweeps.
24. Revise § 76.1602(b) introductory text to read as follows:
(b) The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request:
25. Amend § 76.1610 by removing paragraphs (f) and (g).
26. Revise § 76.1701(d) to read as follows:
(d) Where origination cablecasting material is a political matter or matter involving the discussion of a controversial issue of public importance and a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the matter, the system operator shall, in addition to making the announcement required by § 76.1615, require that a list of the chief executive officers or members of the executive committee or of the board of directors of the corporation, committee, association or other unincorporated group, or other entity shall be made available for public inspection at the local office of the system. Such lists shall be kept and made available for two years.
27. Revise § 76.1804 section heading and introductory paragraph to read as follows:
An MVPD shall notify the Commission before transmitting any carrier of other signal component with an average power level across a 30 kHz bandwidth in any 2.5 millisecond time period equal to or greater than 10
28. Remove § 76.1909.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on two petitions to list the Mexican gray wolf (
The finding announced in this document was made on October 9, 2012.
This finding is available on the Internet at
Rick Sayers, (see
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
The Mexican wolf was listed as an endangered subspecies on April 28, 1976 (41 FR 17736). In 1978, we published a rule (43 FR 9607, March 9, 1978) reclassifying the gray wolf as an endangered population at the species level (
In 1996, we published a Final Environmental Impact Statement, “Reintroduction of the Mexican Wolf within its Historic Range in the Southwestern United States,” after assessing potential locations for the reintroduction of the Mexican wolf (61 FR 67573; December 23, 1996). On April 3, 1997, the Department of the Interior issued its Record of Decision on the Final Environmental Impact Statement (62 FR 15915). We published a final rule, “Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico,” on January 12, 1998 (63 FR 1752), which established the Mexican Wolf Experimental Population Area in central Arizona and New Mexico and designated the reintroduced population as a nonessential experimental population under section 10(j) of the Act. In March of that year, 11 Mexican wolves from the captive breeding program were released to the wild.
On April 1, 2003, we published a final rule revising the listing status of the gray wolf across most of the conterminous United States (68 FR 15804). Within that rule, we established three DPS designations for the gray wolf. Gray wolves in the Western DPS and the Eastern DPS were reclassified from endangered to threatened, except where already classified as threatened or as an experimental population. Mexican wolves in the Southwestern DPS retained their previous endangered or experimental population status. On January 31, 2005, and August 19, 2005, U.S. District Courts in Oregon and Vermont, respectively, ruled that the April 1, 2003, final rule violated the Act (
The status of the Mexican wolf as endangered was not changed by the listing rule or the Courts' invalidation of the rule. Invalidation of the rule establishing the three DPSs did cause the suspension of formal separate recovery planning for the Southwestern DPS, as that entity no longer existed as such, but recovery efforts for the Mexican wolf continued as part of the reinstated 1978 lower-48-State-and-Mexico gray wolf listing. On May 5, 2010, we announced the availability of the Mexican Wolf Conservation Assessment (75 FR 24741), a nonregulatory document intended to provide scientific information relevant to the conservation of the Mexican wolf in Arizona and New Mexico as a component of the Service's gray wolf recovery efforts (Service 2010). In December 2010, we convened a new Mexican Wolf Recovery Team, which is tasked with revising and updating the 1982 recovery plan. The new recovery plan will provide objective recovery criteria for the delisting of the Mexican wolf. A draft revised recovery plan is anticipated in 2013, and the final plan in late 2014.
On August 11, 2009, we received a petition from the Center for Biological Diversity requesting that the Mexican wolf be listed as an endangered subspecies or DPS and critical habitat be designated under the Act. On August 12, 2009, we received a petition dated August 10, 2009, from WildEarth Guardians and The Rewilding Institute requesting that the Mexican wolf be listed as an endangered subspecies and critical habitat be designated under the Act. The petitions clearly identified themselves as such and included the requisite identification information for the petitioner(s), as required by 50 CFR 424.14(a). On October 22, 2009, we responded with letters to the petitioner(s) indicating that the petitions were under review and that we would make a finding as to whether or not the petitions present substantial information indicating that the requested action may be warranted. In response to complaints from the petitioners, we agreed, pursuant to a stipulated settlement agreement, to complete the 90-day finding in response to these petitions by July 31, 2010.
On August 4, 2010, we published in the
The Mexican wolf is a genetically distinct subspecies of the North American gray wolf; adults weigh 23–41 kilograms (kg) (50–90 pounds (lbs)) with a length of 1.5–1.8 meters (m) (5–6 feet (ft)) and height at shoulder of 63–81 centimeters (cm) (25–32 inches (in)) (Young and Goldman 1944; Brown 1983, p. 119). Mexican wolves are typically a patchy black, brown to cinnamon, and cream color, with primarily light underparts (Brown 1983, p. 118); solid black or white Mexican wolves do not exist as seen in other North American gray wolves.
Integration of ecological, morphological, and genetic evidence supports several conclusions relevant to the southwestern United States regarding gray wolf taxonomy and range. First, there is agreement that the Mexican wolf is distinguishable from other gray wolves based on morphological and genetic evidence. Second, recent genetic evidence continues to support the observation that historic gray wolf populations existed in intergradations across the landscape as a result of their dispersal ability (Leonard
Historically, Mexican wolves were associated with montane woodlands and adjacent grasslands (Brown 1983, p. 19) in areas where ungulate prey were numerous. Wolf packs establish territories, or home ranges, in which they hunt for prey. Recent studies have shown the preferred prey of Mexican wolves to be elk (Reed
Gray wolves die from a variety of causes including disease, malnutrition, debilitating injuries, interpack strife, and human exploitation and control (Service 1996, p. A–2). In the reintroduced Mexican wolf population, causes of mortality have been largely human-related (vehicular collision and illegal shooting). Additionally, reintroduced Mexican wolves have been removed from the wild for management purposes. To date, the Mexican wolf population has had a failure (mortality plus removal) rate too high for natural or unassisted population growth, and, as stated above, the population has oscillated between 40 and 60 wolves since 2003. The most recent end-of-year population survey in 2011 documented a minimum of 58 Mexican wolves in the wild.
The Mexican wolf has been listed as endangered as part of the broader lower-48-State-and-Mexico gray wolf listing, as revised, since 1978 (43 FR 9607, March 9, 1978). Thus, although not currently listed separately as a subspecies or DPS, Mexican wolves have been protected by the Act for the last 36 years. As a result of this protection, and the actions described below, the minimum number of Mexican wolves in the wild in the United States has risen from none in the late 1990's to 58 in 2011. It is important to note that the 1978 reclassification rule stipulated that “biological subspecies would continue to be maintained and dealt with as separate entities” (43 FR 9609), and offered “the firmest assurance that [the Service] will continue to recognize valid biological subspecies for purposes of its research and conservation programs” (43 FR 9610, March 9, 1978).
In accordance with these assurances, the Service has actively focused on Mexican wolf conservation and recovery beginning with our involvement in the establishment of the captive breeding program in the late 1970s (Parsons 1996, Lindsey and Siminski 2007), the completion of the Mexican wolf recovery plan in 1982 (Service, 1982), the establishment of the Mexican Wolf Experimental Population Area in central Arizona and New Mexico in 1998 (63 FR 1752), and the reintroduction of Mexican wolves into the wild later that same year. Further, we are currently in the process of revising and updating the 1982 recovery plan, which we anticipate releasing for public and peer review in 2013. These actions demonstrate the Service's long-standing commitment to Mexican wolf recovery.
The current listing of all gray wolves in the lower 48 states and Mexico (save for those in the western Great Lakes, and the northern Rocky Mountains) encompasses any gray wolf subspecies or DPS that may occur in those same states or Mexico. More generally, the listing of any species as endangered or threatened encompasses within it all subspecies or potential DPSs comprising that species. Were the Service to separately list each constituent subspecies or potential DPS comprising an already listed entity, the endangered and threatened list would almost certainly be expanded several fold, and the limited resources of the Service would be consumed for years by the task, only to give again the protection of the Act to individual plants and animals that already had it. There is no indication in the Endangered Species Act that Congress intended the Service to list separately each of the constituent subspecies or DPSs encompassed within a broader listed entity, and it has been the consistent practice of the Service not to do so.
Therefore, because all individuals that comprise the petitioned entity already receive the protections of the Act, and in fact are collectively the focus of a significant Service-led recovery effort consistent with the 1978 revised listing, we find the petitioned action is not warranted at this time. However, we continue to review the appropriate conservation status of all gray wolves that comprise the 1978 lower-48-State-and-Mexico gray wolf listing, as revised, and we may revise the current listing based on the outcome of that review. In particular, we note that we could not, consistent with the requirements of the Act, take any action that would remove the protections accruing to Mexican wolves under the 1978 lower-48-State-and-Mexico listing, as revised, without first determining whether the Mexican wolf warranted listing separately as a subspecies or a DPS, and, if so, putting a separate listing in place.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the U.S. Fish and Wildlife Service, Headquarters Office, Endangered Species Program.
The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Pursuant to the Federal Advisory Committee Act, notice is hereby given of the public meeting of the Board for International Food and Agricultural Development (BIFAD). The meeting will be held from 8:45 a.m. to 3:30 p.m. on Tuesday, October 16, 2012 at the Downtown Des Moines Marriott located at 700 Grand Avenue, Des Moines, Iowa. The central theme of this year's meeting will be “
Dr. Brady Deaton, BIFAD Chair and Chancellor of the University of Missouri at Columbia, will preside over the meeting.
The public meeting will begin promptly at 8:45 a.m. with opening remarks by BIFAD Chair Brady Deaton. The Board will address both old and new business during this time and hear from USAID and the university community on progress and mechanisms for advancing programming in agriculture, with a focus on health and nutrition. There will be two panels on this topic, one in the morning and the other in the afternoon. Two board members will provide comments on a recent visit to Haiti to assess the impact of their recommendations to strengthen agricultural research and capacity building. The Board will also hear updates on Feed the Future and the G8 New Alliance for Food Security and Nutrition and will present their findings from a review of the Collaborative Research Support Program (CRSP) model, with a USAID response. Time will then be allowed for public comment.
In the afternoon, the BIFAD chair will present the reinstituted `BIFAD Award for Scientific Excellence in a USAID Collaborative Research Support Program.' Additional time for public comment will be allowed in the afternoon. At 3:30 p.m., the public meeting of the BIFAD will adjourn.
Those wishing to attend the meeting or obtain additional information about BIFAD should contact Susan Owens, Executive Director and Designated Federal Officer for BIFAD. Interested persons may write to her in care of the U.S. Agency for International Development, Ronald Reagan Building, Bureau for Food Security, 1300 Pennsylvania Avenue NW., Room 2.12–001, Washington, DC 20523–2110 or telephone her at (202) 712–0218.
Thursday, October 11, 2012, 1:15 p.m. EDT.
Cohen Building, Room 3321, 330 Independence Ave. SW., Washington, DC 20237.
Notice of Meeting of the Broadcasting Board of Governors.
The Broadcasting Board of Governors (BBG) will be meeting at the time and location listed above. At the meeting, the BBG will recognize the David Burke Distinguished Journalism Awards winners. The BBG will receive and consider proposed BBG meeting dates in 2013 and consider a resolution honoring an employee for his service. The BBG will recognize the anniversaries of Agency language services, receive a Middle East trip report, receive a distribution/technology initiatives update, receive a budget update, and receive reports from the International Broadcasting Bureau Director, the Technology, Services and Innovation Director, the Communications and External Affairs Director, the VOA Director, the Office of Cuba Broadcasting Director, and the Presidents of Radio Free Europe/Radio Liberty, Radio Free Asia, and the Middle East Broadcasting Networks.
The public may attend this meeting in person at BBG headquarters in DC as seating capacity allows. Member of the public seeking to attend the meeting in person must register at
Persons interested in obtaining more information should contact Paul Kollmer-Dorsey at (202) 203–4545.
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).
National Marine Fisheries Service (NMFS) Northeast Region manages the Northeast (NE) Multispecies Fishery of the Exclusive Economic Zone (EEZ) of the Northeastern United States through the NE Multispecies Fishery
The NE Multispecies Days-at-Sea (DAS) Leasing Program was implemented in 2004 as a result of Amendment 13 (69 FR 22906) which substantially reduced the number of DAS available for the NE multispecies vessels. To mitigate some of the adverse impact associated with the reduction in DAS, the NE Multispecies Leasing Program was developed to enable vessels to increase their revenue by either leasing additional DAS from another vessel to increase their participation on the fishery, or by leasing their unused allocated DAS to another vessel.
NMFS requests DAS leasing application information in order to process and track requests from allocation holders to transfer DAS to another vessel. This information, upon receipt, results in an increasingly more efficient and accurate database for management and monitoring of fisheries of the Northeastern U.S. EEZ. The DAS leasing downgrade information is collected to allow vessel owners that are eligible to lease NE Multispecies DAS a one-time downgrade in their baseline specifications to their current vessel specifications. This one-time downgrade provides greater flexibility for vessel to lease their DAS.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The Puget Sound estuary provides one of the most valuable shellfish habitats in the Pacific Northwest. Shellfish are important economically, ecologically, and socially to the Puget Sound basin. While shellfish bed closures have decreased area-wide, persistent closures continue in certain locations, affecting local growers and restricting commercial and recreational harvest opportunities. The Puget Sound Partnership (Partnership), a Washington State agency established to facilitate the conservation and restoration of Puget Sound, has set a priority to reduce the risks of shellfish growing area closures and adverse effects on human health. The Partnership's Action Agenda, the blueprint for action to restore and protect Puget Sound, has set a goal for a net increase of 10,800 harvestable shellfish acres by 2020.
In support of the Partnership's pursuit of this goal, the Northwest Fisheries Science Center is undertaking an economics research project to assess the behavior of individual shellfish harvesters in response to the opening and closing of individual shellfish beaches for human health reasons, and how these actions affect the value of shellfish harvesting. The Puget Sound Recreational Shellfish Harvesting Project (PSRSHP) will provide critical economic data related to recreational shellfish harvesting. More specifically, the PSRSHP will collect data needed to assess (1) the socioeconomic characteristics of recreational shellfish harvesting participants; (2) the economic value of access to Puget Sound beaches for recreational shellfish harvesting through statistical estimation of models; and (3) the potential changes in these values stemming from possible changes in management policies related to human health that affect the status of particular shellfish harvesting areas.
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
Economics and Statistics Administration, Department of Commerce.
Notice.
Below is a listing of individuals who are eligible to serve on the Performance Review Board (PRB) in accordance with the Economics and Statistics Administration's Senior Executive Service and Senior Professional Performance Management Systems:
Gail Smith, 301–763–3727.
Bureau of the Census, Department of Commerce.
Notice of public meeting.
The Bureau of the Census (Census Bureau) is giving notice of a meeting of the National Advisory Committee on Racial, Ethnic, and Other Populations. The Committee will address issues related to the American Community Survey, Mixed-Mode Data Collection, and early 2020 Census planning. The Committee will meet in a plenary session on October 25–26, 2012. Last-minute changes to the schedule are possible, which could prevent giving advance public notice of schedule adjustments.
October 25–26, 2012. On October 25, the meeting will begin at approximately 9 a.m. and end at approximately 5:15 p.m. On October 26, the meeting will begin at approximately 9 a.m. and end at approximately 2:15 p.m.
The meeting will be held at the U.S. Census Bureau, 4600 Silver Hill Road, Suitland, Maryland 20746.
Jeri Green,
The National Advisory Committee on Racial, Ethnic, and Other Populations was established this year and comprises up to thirty-two members. The Committee provides a channel of communication between outside experts and the Census Bureau. The Committee provides advice about economic, housing, demographic, socioeconomic, technological, operational variables, etc., affecting the cost, accuracy and implementation of Census Bureau programs and surveys. The Committee also provides an outside-user perspective and advice on research and early design plans for the 2020 Census, the American Community Survey, and other related programs particularly as they pertain to increasing census participation. The Committee assists the Census Bureau in understanding ways that census data can best be disseminated to diverse racial and ethnic populations and other users. The Committee is established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2.
All meetings are open to the public. A brief period will be set aside at the meeting for public comment on October 26. However, individuals with extensive questions or statements must submit them in writing to Ms. Jeri Green at least three days before the meeting. If you plan to attend the meeting, please register by Monday, October 22, 2012. You may access the online registration using the following link:
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Committee Liaison Officer as soon as possible, preferably two weeks prior to the meeting.
Due to increased security, and for access to the meeting, please call 301–763–9906 upon arrival at the Census Bureau on the day of the meeting. A photo ID must be presented in order to receive your visitor's badge. Visitors are not allowed beyond the first floor.
Economic Development Administration, Department of Commerce.
Notice and Opportunity for Public Comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
The Puerto Rico Industrial Development Company, grantee of FTZ 7, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Baxter Healthcare of Puerto Rico, at two sites within FTZ 7, located in Aibonito and Jayuya, Puerto Rico.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Import Administration, International Trade Administration, U.S. Department of Commerce.
In response to requests from interested parties, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain lined paper products (CLPP) from India. The period of review is September 1, 2010, through August 31, 2011 and the review covers 57 producers/exporters of the subject merchandise. We have preliminarily found that sales of the subject merchandise have been made at prices below normal value.
Cindy Robinson or James Terpstra, 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) 482–3797 or (202) 482–3965, respectively.
The merchandise covered by this order is certain lined paper products. The merchandise subject to this order is currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4811.90.9035, 4811.90.9080, 4820.30.0040, 4810.22.5044, 4811.90.9050, 4811.90.9090, 4820.10.2010, 4820.10.2020, 4820.10.2030, 4820.10.2040, 4820.10.2050, 4820.10.2060, and 4820.10.4000. Although the HTSUS numbers are provided for convenience and customs purposes, the written product description, available in
The Department has conducted this review in accordance with Section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export prices and constructed export prices have been calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. In making these findings, we have relied, in part, on facts available and because one or more respondents did not act to the best of their ability to respond to the Department's requests for information, we have drawn an adverse inference in selecting from among the facts otherwise available.
For a full description of the methodology underlying our conclusions, please see the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Certain Lined Paper Products from India” (Preliminary Decision Memorandum), dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
As a result of this review, we preliminarily determine that the following weighted-average dumping margins exist for the period September 1, 2010, through August 31, 2011:
The Department intends to disclose to interested parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, filed electronically via IA ACCESS within 30 days after the date of publication of this notice.
Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. For any individually examined respondents whose weighted-average dumping margin is above
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by each respondent for which they did not know that their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for Riddhi and SAB, and the remaining 55 companies listed in the “Preliminary Result of the Review” section, will be the rate established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 3.91 percent, the all-others rate established in the investigation.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (PRC). The period of review (POR) is September 1, 2010, through August 31, 2011. The review covers the following producers/exporters of the subject merchandise, Xiping Opeck Food Co., Ltd. (Xiping Opeck), Yancheng Hi-King Agriculture Developing Co., Ltd., (Hi-King Agriculture) and China Kingdom (Beijing) Import & Export Co., Ltd (China Kingdom). We have preliminarily determined that Hi-King Agriculture sold subject merchandise at less than normal value during the period of review and that Xining Opeck and China Kingdom have made sales in the United States at prices not below normal value.
Hermes Pinilla or Minoo Hatten, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3477, and (202) 482–1690, respectively.
The merchandise subject to the order is freshwater crawfish tail meat. The product is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers 1605.40.10.10 and 1605.40.10.90. Although the HTSUS subheadings are provided for convenience and customs purposes only, the written product description, available in
Although we have calculated a margin for Xiping Opeck for purposes of the preliminary results, we require additional information in order to accurately assess the nature of the transactions pertaining to entries under review with respect to Xiping Opeck. For further details on our analysis, please see the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul
We preliminarily determine that Hi-King Agriculture and its affiliates, Yancheng Seastar Seafood Co., Ltd., Wuhan Hi-King Agriculture Development Co., Ltd., Yancheng Hi-King Frozen Food Co., Ltd., Jiangxi Hi-King Poyang Lake Seafood Co., Ltd., and Yancheng Hi-King Aquatic Growing Co., Ltd., should be treated as a single entity for the purpose of calculating an antidumping duty margin.
The Department has conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export Price is calculated in accordance with section 772(c) of the Act. Because the PRC is a nonmarket economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. Specifically the respondents' factors of production have been valued in Indonesian prices (when available), which is economically comparable to the PRC and a significant producer of comparable merchandise. For a full description of these “surrogate” values and the methodology underlying our conclusions, please see memorandum entitled “Freshwater Crawfish Tail Meat from the People's Republic of China: Surrogate-Value Memorandum” dated concurrently with this notice and the Preliminary Decision Memorandum.
The Department has determined that the following preliminary dumping margins exist for the period September 1, 2010, through August 31, 2011:
The Department will disclose
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of this administrative review, including the results of its analysis of issues raised by parties in their comments, within 120 days after the issuance of these preliminary results.
In accordance with 19 CFR 351.301(c)(3), the deadline for submission of publicly available information to value factors of production under 19 CFR 351.408(c) is 20 days after the date of publication of these preliminary results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department has extended the deadline), the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the Department notes that 19 CFR 351.301(c)(1), permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record.
Upon issuing the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. For any individually examined respondent whose weighted average
Where the Department calculates a weighted-average dumping margin by dividing the total amount of dumping for reviewed sales to that party by the total sales quantity associated with those transactions, the Department will direct CBP to assess importer-specific assessment amounts based on the resulting per-unit amounts. Where an importer- (or customer-) specific
The following cash deposit requirements, when imposed, will apply to all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for Xiping Opeck, Hi-King Agriculture, China Kingdom, and Nanjing Gemsen International Co., Ltd. will be the rates established in the final results of this administrative review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This review and notice are in accordance with sections 751(a)(1), 751(a)(2)(B)(iv), 751(a)(3), and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on certain kitchen appliance shelving and racks from the People's Republic of China (“PRC”) for the period of review (“POR”) September 1, 2010, through August 31, 2011. The Department has preliminarily determined that New King Shan (Zhu Hai) Wire Co., Ltd. (“NKS”) did not sell subject merchandise in the United States at prices below normal value.
Katie Marksberry, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–7906.
The scope of this order consists of shelving and racks for refrigerators, freezers, combined refrigerator-freezers, other refrigerating or freezing equipment, cooking stoves, ranges, and ovens.
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) statistical reporting numbers 8418.99.8050, 8418.99.8060, 7321.90.5000, 7321.90.6090, 8516.90.8000, 8516.90.8010, 7321.90.6040, and 8419.90.9520. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description, available in
Petitioners timely requested an administrative review for Asia Pacific CIS (Wuxi) Co., Ltd., Hengtong Hardware Manufacturing (Huizhou) Co., Ltd., Weixi, and Leader Metal Industry Co., Ltd. (aka Marmon Retail Services Asia), companies which do not have a separate rate, and then timely withdrew their requests for review of the above-mentioned companies.
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). Constructed export prices have been calculated in accordance with section 772 of the Act. Because the PRC is a nonmarket economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c). Specifically, the NKS's factors of production have been valued in Thai prices, which is economically comparable to the PRC and is a significant producer of comparable merchandise.
For a full description of the methodology underlying our conclusions, please see “Decision Memorandum for Preliminary Results for the Antidumping Duty Administrative Review of Certain Kitchen Appliance Shelving and Racks from the People's Republic of China,” (“Preliminary Decision Memorandum”) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users at
The Department preliminarily determines that the following weighted-average dumping margin exists.
The Department will disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice. Interested parties, who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
The Department will consider case briefs filed by interested parties within 30 days after the date of publication of this notice in the
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
Where the Department calculates a weighted-average dumping margin by dividing the total amount of dumping for reviewed sales to that party by the total sales quantity associated with those transactions, the Department will direct CBP to assess importer-specific assessment rates based on the resulting per-unit rates. Where an importer- (or customer-) specific
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For NKS, which has a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on certain new pneumatic off-the-road tires (“OTR tires”) from the People's Republic of China (“PRC”). The period of review (“POR”) is September 1, 2010, through August 31, 2011. The review covers one exporter of subject merchandise, Hangzhou Zhongce Rubber Co., Ltd. (“Zhongce”). We have preliminarily found that Zhongce made sales of subject merchandise at less than normal value.
Andrew Medley, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4987.
The merchandise covered by this order includes new pneumatic tires designed for off-the-road and off-highway use, subject to certain exceptions. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. The HTSUS subheadings are provided for convenience and customs purposes only; the written product description of the scope of the order is dispositive.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of the initiation notice.
For all but five of the 85 companies for which the Department initiated an administrative review, Bridgestone Americas, Inc. and Bridgestone Americas Tire Operations, LLC (“Bridgestone”), a domestic interested party, was the only party that requested the review. On January 6, 2012, Bridgestone timely withdrew all of its review requests. On January 11, 2012, GTC
For those companies named in the
Bridgestone's withdrawal of its timely request for an administrative review, as described above, included requests to conduct administrative reviews of multiple companies that do not have separate rates. While the requests for review of these companies were timely withdrawn, those companies remain a part of the PRC-wide entity. Although the PRC-wide entity is not under review for these preliminary results, the possibility exists that the PRC-wide entity could be under review for the final results of this administrative review. Therefore, we are not rescinding this review with respect to these companies at this time, but we intend to rescind this review with respect to these companies in the final results if the PRC-wide entity is not reviewed. These companies are listed in Appendix III.
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). Export prices have been calculated in accordance with section 772 of the Act. Because the PRC is a nonmarket economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. For a full description of the methodology underlying our
The Department preliminarily determines that the following weighted-average dumping margin exists:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
In accordance with 19 CFR 351.301(c)(3)(ii), the deadline for submission of publicly available information to value factors of production under 19 CFR 351.408(c) is 20 days after the date of publication of the preliminary results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department has extended the deadline), the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the Department generally will not accept in the rebuttal submission additional or alternative surrogate value information not previously on the record, if the deadline for submission of surrogate value information has passed.
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
Where appropriate, we calculated a per-unit rate for each importer (or customer) by dividing the total dumping margins for reviewed sales to that party by the total sales quantity associated with those transactions. For duty-assessment rates calculated on this basis, we will direct CBP to assess the resulting per-unit rate against the entered quantity of the subject merchandise. Where an importer- (or customer) -specific assessment rate is
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For Zhongce, the cash deposit rate will be the company-specific rate established in the final results of this review, except if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Separate rate companies for which we are rescinding this administrative review:
Companies that are part of the PRC-wide entity for which Bridgestone has withdrawn its review request:
Import Administration, International Trade Administration, Department of Commerce.
On June 1, 2012, the Department of Commerce (the “Department”) published in the
Cindy Robinson, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3797.
In the
In addition, the Department preliminarily applied AFA with respect to Leo/Denmax because Leo/Denmax did not respond to the Department's questionnaire. As stated above, on June 1, 2012, the Department published its
The POR is September 1, 2010, through August 31, 2011.
The scope of this order includes certain lined paper products, typically school supplies (for purposes of this scope definition, the actual use of or labeling these products as school supplies or non-school supplies is not a defining characteristic) composed of or including paper that incorporates straight horizontal and/or vertical lines on ten or more paper sheets (there shall be no minimum page requirement for looseleaf filler paper) including but not limited to such products as single- and multi-subject notebooks, composition books, wireless notebooks, looseleaf or glued filler paper, graph paper, and laboratory notebooks, and with the smaller dimension of the paper measuring 6 inches to 15 inches (inclusive) and the larger dimension of the paper measuring 8-3/4 inches to 15 inches (inclusive). Page dimensions are measured size (not advertised, stated, or “tear-out” size), and are measured as they appear in the product (
Specifically excluded from the scope of this order are:
• Unlined copy machine paper;
• Writing pads with a backing (including but not limited to products commonly known as “tablets,” “note pads,” “legal pads,” and “quadrille pads”), provided that they do not have a front cover (whether permanent or removable). This exclusion does not apply to such writing pads if they consist of hole-punched or drilled filler paper;
• Three-ring or multiple-ring binders, or notebook organizers incorporating such a ring binder provided that they do not include subject paper;
• Index cards;
• Printed books and other books that are case bound through the inclusion of binders board, a spine strip, and cover wrap;
• Newspapers;
• Pictures and photographs;
• Desk and wall calendars and organizers (including but not limited to such products generally known as “office planners,” “time books,” and “appointment books”);
• Telephone logs;
• Address books;
• Columnar pads & tablets, with or without covers, primarily suited for the recording of written numerical business data;
• Lined business or office forms, including but not limited to: Pre-printed business forms, lined invoice pads and paper, mailing and address labels, manifests, and shipping log books;
• Lined continuous computer paper;
• Boxed or packaged writing stationary (including but not limited to products commonly known as “fine business paper,” “parchment paper”, and “letterhead”), whether or not containing a lined header or decorative lines;
• Stenographic pads (“steno pads”), Gregg ruled (“Gregg ruling” consists of a single- or double-margin vertical ruling line down the center of the page. For a six-inch by nine-inch stenographic pad, the ruling would be located approximately three inches from the left of the book.), measuring 6 inches by 9 inches.
Also excluded from the scope of this order are the following trademarked products:
• Fly
• Zwipes
• FiveStar®Advance
• FiveStar Flex
Merchandise subject to this order is typically imported under headings 4810.22.5044, 4811.90.9050, 4820.10.2010, 4820.10.2020, 4820.10.2030, 4820.10.2040, 4820.10.2060, and 4820.10.4000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The HTSUS headings are provided for convenience and customs purposes; however, the written description of the scope of this order is dispositive.
Since the issuance of the order, the Department has clarified the scope of the order in response to numerous scope inquiries. In addition, on September 23, 2011, the Department revoked, in part, the PRC AD order with respect to FiveStar® Advance
We have received no comments on our
Because there is no information on the record which indicates that Lian Li made shipments of subject merchandise which entered the United States during the POR, and because we did not receive any comments on our
In this case, the Department issued a questionnaire to Leo/Denmax on November 8, 2011, by email. Receiving no acknowledgement of receipt of the emailed questionnaire from Leo/Denmax, the Department sent a hard copy of the questionnaire to Leo/Denmax through United Parcel Service (“UPS”) by registered mail on November 17, 2011.
Section 776(a) of the Tariff Act of 1930, as amended (“the Act”) provides that the Department shall apply “facts otherwise available” if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous
Because Leo/Denmax did not provide the requested information timely and properly, they significantly impeded the proceeding and we find that application of facts available is appropriate under sections 776(a)(2)(A), (B), and (C) of the Act. We further find that application of AFA is appropriate under section 776(b) because Leo/Denmax failed to cooperate to the best of its ability in responding to the Department's requests for information.
In proceedings involving nonmarket economy (“NME”) countries, there is a rebuttable presumption that all companies within that country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of subject merchandise in an NME country this single rate unless an exporter demonstrates that it is sufficiently independent so as to be entitled to a separate rate. Exporters can demonstrate this independence through the absence of both
Because we determined that Leo/Denmax is part of the PRC-wide entity, the PRC-wide entity is under review. Pursuant to section 776(a) of the Act, we further find that because the PRC entity (including Leo/Denmax) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, submitted information that cannot be verified, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC-wide entity using the facts otherwise available on the record. Moreover, by failing to respond to the Department's requests for information, we find that the PRC-wide entity has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information in this proceeding, within the meaning of section 776(b) of the Act. Therefore, an adverse inference is warranted in selecting from the facts otherwise available.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any other information placed on the record. In selecting a rate for AFA, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Generally, the Department finds that selecting the highest rate from any segment of the proceeding as AFA is appropriate.
As AFA, we have assigned to the PRC-wide entity a rate of 258.21 percent, from the investigation of certain lined paper products from the PRC, which is the highest rate on the record of all segments of this proceeding.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 of the Act concerning the subject merchandise.
The AFA rate selected in this instance is from the original investigation. This
We determine that the following margin exists for the period September 1, 2010, through August 31, 2011:
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. We will instruct CBP to liquidate all appropriate entries at the PRC-wide rate of 258.21 percent.
The following cash deposit requirements will be effective upon publication of the notice of final results of the administrative review for all shipments of certain lined paper products from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) For previously reviewed or investigated companies not listed above that have separate rates, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (2) for all other PRC exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash-deposit rate will be PRC-wide rate of 258.21 percent; and (3) for all non-PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit 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 double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on certain magnesia carbon bricks from the People's Republic of China (“PRC”), covering the period of review (“POR”) of March 12, 2010, through August 31, 2011. The Department has preliminarily applied adverse facts available (AFA) to the two mandatory respondents who both failed to cooperate to the best of their ability in this proceeding. The Department also intends to rescind the review of seven companies that certified that they had no shipments of subject merchandise to the United States during the POR.
Jerry Huang, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4047.
The merchandise subject to the order includes certain magnesia carbon bricks. Certain magnesia carbon bricks that are the subject of this order are currently classifiable under subheadings 6902.10.1000, 6902.10.5000, 6815.91.0000, 6815.99.2000 and 6815.99.4000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS numbers are provided for convenience and customs purposes, the written product description, available in
Pursuant to 19 CFR 351.213(d)(3), we have preliminarily determined that ANH (Xinyi) Refractories (“ANH”), Yingkou New Century Refractories Ltd. (“Yingkou New Century”), and RHI-
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). We have relied on facts available and because respondents did not act to the best of their ability to respond to the Department's requests for information, we have drawn an adverse inference in selecting from among the facts otherwise available.
For a full description of the methodology underlying our conclusions, please see “Decision Memorandum for Preliminary Results for the Antidumping Duty Administrative Review of Certain Magnesia Carbon Bricks from the People's Republic of China,” (“Preliminary Decision Memorandum”) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available in the Central Records Unit (“CRU”), room 7046 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet at
The Department has determined that the following preliminary dumping margins exist for the period March 12, 2010, and August 31, 2011:
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after issuance of these preliminary results.
In accordance with 19 CFR 351.301(c)(3), the deadline for submission of publicly available information to value factors of production under 19 CFR 351.408(c) is 20 days after the date of publication of these preliminary results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department has extended the deadline), the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record.
Upon issuing the final results of the review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. For any individually examined respondents whose weighted-average dumping margin is above
The following cash deposit requirements, when imposed, will apply to all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Fengchi Imp. and Exp. Co., Ltd. of Haicheng City and Yingkou Bayuquan Refractories Co., Ltd. will be the rate established in the final results of this administrative review; (2) for any previously reviewed or investigated PRC or non-PRC exporter, not covered in this administrative review, with a separate rate, the cash deposit rate will be the company-specific rate established in the most recent segment of this proceeding; (3) for all other PRC exporters, the cash deposit rate will continue to be the PRC-wide rate (
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the countervailing duty order on certain kitchen appliance shelving and racks (“kitchen racks”) from the People's Republic of China (“PRC”). The period of review (“POR”) is January 1, 2010, through December 31, 2010. We preliminarily determine that New King Shan (Zhu Hai) Co., Ltd. (“NKS”) received countervailable subsidies during the POR. We are also rescinding this review for six other producers/exporters.
Jennifer Meek or Mary Kolberg, Office of AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–2778 and (202) 482–1785, respectively.
The scope of the order consists of shelving and racks for refrigerators, freezers, combined refrigerator-freezers, other refrigerating or freezing equipment, cooking stoves, ranges, and ovens. The merchandise subject to the order is currently classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) numbers 8418.99.80.50, 7321.90.50.00, 7321.90.60.40, 7321.90.60.90, 8418.99.80.60, 8419.90.95.20, 8516.90.80.00, and 8516.90.80.10. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description, available in
Pursuant to 19 CFR 351.213(d)(1), we are rescinding this administrative review with respect to the following parties because the review requests were timely withdrawn: Asia Pacific CIS (Wuxi) Co., Ltd.; Guangdong Wireking Co., Ltd. (formerly known as Foshun Shunde Wireking Housewares & Hardware); Hangzhou Dunli Import & Export Co., Ltd. and Hangzhou Dunli Industry Co., Ltd.; Hengtong Hardware Manufacturing (Huizhou) Co., Ltd.; Jiangsu Weixi Group Co.; and Leader Metal Industry Co., Ltd. (aka Marmon Retail Services Asia).
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy,
In making these findings, we have relied, in part, on facts available and, because one or more respondents did not act to the best of their ability to respond to the Department's requests for information, we have drawn an adverse
For a full description of the methodology underlying our conclusions, please
As a result of this review, we preliminarily determine a net subsidy rate of 12.06 percent for New King Shan (Zhu Hai) Co. Ltd. for the period January 1, 2010, through December 31, 2010.
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties, who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce within 30 days after the date of publication of this notice.
Parties are reminded that briefs and hearing requests are to be filed electronically using IA ACCESS and that electronically filed documents must be received successfully in their entirety by 5 p.m. Eastern Time on the due date.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after issuance of these preliminary results.
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown above. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (the Department) is conducting an administrative review of the countervailing duty order on certain magnesia carbon bricks (MCBs) from the People's Republic of China (PRC), covering the period of review (POR) of August 2, 2010, through December 31, 2010. The Department has preliminarily applied adverse facts available (AFA) to the two mandatory respondents who both failed to cooperate to the best of their ability in this proceeding. The Department also intends to rescind the review of seven companies that certified that they had no shipments of subject merchandise to the United States during the POR.
Toni Page or Elfi Blum, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1398 or (202) 482–0197, respectively.
The merchandise subject to the order includes certain magnesia carbon bricks. Certain magnesia carbon bricks that are the subject of this order are currently classifiable under subheadings 6902.10.1000, 6902.10.5000, 6815.91.0000, 6815.99.2000 and 6815.99.4000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS numbers are provided for convenience and customs purposes, the written product description, available in
On September 30, 2011, we received timely requests for an administrative review of this countervailing duty order from Fengchi Imp. and Exp. Co., Ltd. of Haicheng City and Fengchi Refractories Co., of Haicheng City (collectively, Fengchi), and U.S. importer Vesuvius USA Corporation for subject merchandise it imported from PRC exporter, Yingkou Bayuquan Refractories Co., Ltd. (BRC).
Pursuant to section 351.213(d)(1) of the Department's regulations, a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review.
Pursuant to 19 CFR 351.213(d)(3), the Department may rescind a review where there are no exports, sales, or entries of subject merchandise during the respective POR. In the
The Department subsequently received timely no shipment certifications from the following companies: ANH (Xinyi) Refractories (ANH); RHI-Refractories Asia Pacific Pte. Ltd., RHI Refractories (Dalian) Co. Ltd., RHI Refractories Liaoning Co., Ltd., RHI Trading Shanghai Branch, and RHI Trading (Dalian) Co., Ltd. (RHI companies); Fengchi; and Yingkou New Century Refractories Ltd.(NCR).
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs under review, we preliminarily determine that there are countervailable subsidies,
For a full description of the methodology underlying our conclusions, please see “Decision Memorandum for Preliminary Results for the Countervailing Duty Administrative Review of Certain Magnesia Carbon Bricks from the People's Republic of China,” (Preliminary Decision Memorandum) to Paul Piquado, Assistant Secretary for Import Administration, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
We preliminarily determine that the following margins exist for the period August 2, 2010, through December 31, 2010:
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after issuance of these preliminary results.
In accordance with 19 CFR 351.221(b)(4)(i), we assigned a subsidy rate for each producer/exporter subject to this administrative review. Upon issuing the final results of the review, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review if any individual assessment rate calculated in the final results of this review is above
Pursuant to section 751(a)(2)(C) of the Act, the Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties at the rate of 262.80 percent
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
The National Civilian Community Corps Advisory Board gives notice of the following meeting:
Tuesday, October 16, 2012, 2:30 p.m.–4 p.m.
Conference room #8312, 8th floor, Corporation for National and Community Service Headquarters, 1201 New York Avenue NW., Washington, DC 20525.
This meeting is available to the public through the following toll-free call-in number: 888–790–1955; conference call access code number, “NCCC” (6222). Kate Raftery will be the lead on the call. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Corporation will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Replays are generally available one hour after a call ends. The toll-free phone number for the replay is 866–396–6249 and passcode: 5749. The end replay date: November 16, 2012, 9:59 p.m. (CT).
Open.
Anyone who needs an interpreter or other accommodation should notify the Corporation's contact person by 5 p.m. Tuesday, October 9, 2012.
Erma Hodge, NCCC, Corporation for National and Community Service, 9th Floor, Room 9802B, 1201 New York Avenue NW., Washington, DC 20525. Phone (202) 606–6696. Fax (202) 606–3459. TTY: (800) 833–3722. Email:
Office of the Assistant Secretary of Defense for Public Affairs, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by December 10, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Assistant Secretary of Defense for Public Affairs, Community and Public Outreach Division, ATTN: Adrien Starks, 1400 Defense Pentagon, Washington, DC 20301–1400, or call OASD(PA)/CPO, at 703–695–6290.
Respondents are members of non-profit organizations wanting to use the military in their promotional and/or fund raising material. Respondents may also be marketing and advertising professionals who provide military or patriotic-themed exhibits, promotional material, web page designs, and advertisements for their business clients and require DoD approval for use of military imagery as part of their standard operating procedure. The completed form allows the respondents to acknowledge and comply with the DoD guidelines for granting military image use approval in their products. The completed form is included with the final mock-up of the proposed commercial use product and serves as notification that the respondent has complied with the DoD guidelines. If the form is not submitted or is incomplete, individuals reviewing the military imagery in the proposed commercial use product must contact the respondent and convey the requested changes in order to obtain DoD approval. Having the marketing, advertising, and non-profit organization professionals complete the form will educate the community of respondents about DoD guidelines, reduce the response time to their requests, and increase efficiency for those reviewing the requests.
Department of the Navy, DoD.
Notice.
The location of one of the four public meetings on the Draft LEIS is being changed. The October 25, 2012 public meeting will now be held at the Oceanside City Council Chambers and Lobby, 330 North Coast Highway, Oceanside, CA. Each of the four public meetings will be conducted in an open house meeting format from 5:30 p.m. to 8 p.m. A Notice of Public Meetings (NOPMs) for the Draft LEIS was published in the
CMAGR LEIS Project Manager (Attn: Ms. Kelly Finn), NAVFAC Southwest, 1220 Pacific Highway, Building 1 Central IPT, San Diego, CA 92132–5190; phone 619–532–4452. Additional supplementary information regarding the Chocolate Mountain Aerial Gunnery Range (CMAGR) Draft LEIS is available at
The Department of the Navy, in cooperation with the Bureau of Land Management and Bureau of Reclamation, has prepared and filed with the U.S. Environmental Protection Agency a Draft Legislative Environmental Impact Statement (LEIS) that evaluates the potential environmental consequences that may result from renewing the withdrawal of approximately 228,465 acres of public land for continued use as part of the CMAGR in Imperial and Riverside counties, California. A Notice of Availability and NOPMs for the Draft LEIS were published in the
Each of the four public meetings will be conducted in an open house meeting format. The public meetings will be held from 5:30 p.m. to 8 p.m. on the following dates and at the following locations:
1. October 22, 2012 at the Yuma County Library, 2951 S. 21st Drive, Rooms B–C, Yuma, AZ.
2. October 23, 2012 at the Southwest High School, 2001 Ocotillo Dr., El Centro, CA.
3. October 24, 2012 at the Mizell Senior Center, 480 South Sunrise Way, Palm Springs, CA.
4. October 25, 2012 at the City Council Chambers and Lobby, 330 North Coast Highway, Oceanside, CA.
Please submit requests for special assistance, sign language interpretation for the hearing impaired, or other auxiliary aids needed at the public meetings to the LEIS Project Manager at least five business days before the meeting date.
Attendees will be able to submit written comments at the public meetings. A court reporter will be available to accept oral comments. Equal weight will be given to oral and written statements. Comments on the Draft LEIS may be submitted by: (1) Attending one of the public hearings and providing oral or written comments, (2) completing the comment form on the project's public Web site at
Department of the Navy, DoD.
Notice.
The inventions listed below are assigned to the United States Government as represented by the Secretary of the Navy and are available for domestic and foreign licensing by the Department of the Navy.
The following patents are available for licensing: Patent No. 7,603,251: MAGNETIC ANOMALY SENSING SYSTEM FOR DETECTION, LOCALIZATION AND CLASSIFICATION OF A MAGNETIC OBJECT IN A CLUTTERED FIELD OF MAGNETIC ANOMALIES//Patent No. 7,621,410: REMOVABLE EXTERNALLY MOUNTED BRIDGE CRANE FOR SHIPPING CONTAINERS//Patent No. 7,637,224: COMMAND INFLATABLE BOAT STOPPING BARRIER//Patent No. 7,654,262: SYSTEM FOR REDUCING HYDROSTATIC LOAD IMBALANCES IN A DRIVERS' OPEN-CIRCUIT BREATHING APPARATUS//Patent No. 7,688,072: PORTABLE MAGNETIC SENSING SYSTEM FOR REAL-TIME POINT-BY-POINT DETECTION, LOCALIZATION AND CLASSIFICATION OF MAGNETIC OBJECTS//Patent No. 7,712,727: AIR CUSHION VEHICLE BOW SKIRT RETRACTION SYSTEM//Patent No. 7,712,429: LAUNCH AND RECOVERY SYSTEM FOR UNMANNED UNDERSEA VEHICLES//Patent No. 7,721,666: HULL-MOUNTED LINE RETRIEVAL AND RELEASE SYSTEM//Patent No. 7,721,669: COMMON PAYLOAD RAIL FOR UNMANNED VEHICLES//Patent No. 7,726,497: REMOVABLE EXTERNALLY MOUNTED SLEWING CRANE FOR SHIPPING CONTAINERS//Patent No. 7,730,843: HULL-MOUNTED LINE RETRIEVAL AND RELEASE SYSTEM//Patent No. 7,735,781: METHOD AND SYSTEM FOR DEPLOYMENT OF ORDNANCE FROM AN AIRCRAFT IN MID-FLIGHT//Patent No. 7,753,319: ADJUSTABLE CABLE HANGER FOR SECURING CABLES EXTERNALLY//Patent No. 7,760,438: AIR-TO-WATER DE-ANAMORPHOSER AND METHOD OF AIR-TO-WATER DE-ANAMORPHOSIS.//
Requests for copies of the patents cited should be directed to Office of Counsel, Naval Surface Warfare Center Panama City Division,
Mr. James Shepherd, Patent Counsel, Naval Surface Warfare Center Panama City Division, 110 Vernon Ave., Panama City, FL 32407–7001, telephone 850–234–4646.
35 U.S.C. 207, 37 CFR Part 404.
This survey will focus on the post-graduate outcomes of students who received international education fellowships. The Higher Education Opportunity Act of 2008, Section 601 requires that: “The Secretary shall assist grantees in developing a survey to administer to students who have completed programs under this title to determine postgraduate employment, education, or training. All grantees, where applicable, shall administer such survey once every two years and report survey results to the Secretary.”
Interested persons are invited to submit comments on or before November 8, 2012.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
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 Acting 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.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Description: Florida Power Corporation submits tariff filing per 35.13(a)(2)(iii: Rate Schedule No. 219 of Florida Power Corporation to be effective 12/30/2012.
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 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 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:
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of meeting.
September 27, 2012 minutes—Closed Session.
Preliminary discussion of State Compliance Reviews.
Notice of 30-day.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, will submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for a new collection. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Submit your comments, including the Information Collection Request Title and document identifier HHS–OS–16703–30D, to
It supports the Office of Minority Health within the Office of the Secretary of the Department of Health and Human Services (HHS/OS/OMH) in complying with the cultural competency requirements of the Patient Protection and Affordable Care Act of 2010 (ACA) (Pub. L.111–148), as well as the Secretary's Plan to Reduce Racial and Ethnic Health Disparities, the National Stakeholder Strategy for Achieving Health Equity, Healthy People 2020, the Secretary's Strategic Plan priorities, and the Assistant Secretary for Health's Public Health Quality agenda.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Electronic Government Office (EGOV), Department of Health and Human Services, will submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number 4040–0005, scheduled to expire on October 31, 2012. The ICR also requests categorizing the form as a common form, meaning HHS will only request approval for its own use of the form rather than aggregating the burden estimate across all Federal Agencies as was done for previous actions on this OMB control number. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Submit your comments, including the OMB control number 4040–0005 and document identifier HHS–EGOV–17342–30D, to
HHS estimates that the SF–424 Individual form will take 1 hour to complete. We expect that 1 respondent will use this form.
Once OMB approves the use of this common form, federal agencies may request OMB approval to use this common form without having to publish notices and request public comments for 60 and 30 days. Each agency must account for the burden associated with their use of the common form.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
Standardized National Hypothesis Generating Questionnaire—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
It is estimated that each year roughly 1 in 6 Americans get sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. CDC and partners ensure rapid and coordinated surveillance, detection, and response to multistate outbreaks, to limit the number of illnesses, and to learn how to prevent similar outbreaks from happening in the future.
Conducting interviews during the initial hypothesis-generating phase of multistate foodborne disease outbreaks presents numerous challenges. In the U.S. there is not a standard, national form or data collection system for illnesses caused by many enteric pathogens. Data elements for hypothesis generation must be developed and agreed upon for each investigation. This process can take several days to weeks and may cause interviews to occur long after a person becomes ill.
CDC requests OMB approval to collect standardized information, called the Standardized National Hypothesis-Generating Questionnaire, from individuals who have become ill during a multistate foodborne disease event. Since the questionnaire is designed to be administered by public health officials as part of multistate hypothesis-generating interview activities, this questionnaire is not expected to entail significant burden to respondents.
The Standardized National Hypothesis-Generating Core Elements Project was established with the goal to define a core set of data elements to be used for hypothesis generation during multistate foodborne investigations. These elements represent the minimum set of information that should be available for all outbreak-associated cases identified during hypothesis generation. The core elements would ensure that similar exposures would be ascertained across many jurisdictions, allowing for rapid pooling of data to improve the timeliness of hypothesis-generating analyses and shorten the time to pinpoint how and where contamination events occur.
The Standardized National Hypothesis Generating Questionnaire was designed as a data collection tool for the core elements, to be used when a multistate cluster of enteric disease infections is identified. The questionnaire is designed to be administered over the phone by public health officials to collect core elements data from case-patients or their proxies. Both the content of the questionnaire (the core elements) and the format were developed through a series of working groups comprised of local, state, and federal public health partners.
Burden hours are calculated by approximately 4,000 individuals identified during the hypothesis-generating phase of outbreak investigations × 45 minutes/response. There are no costs to respondents other than their time. The total estimated annualized burden is 3,000 hours.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
Assessing the Safety Culture of Underground Coal Mining (0920–0835 Expiration 12/31/2012)—Revision—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH, under Public Law 91–596, Sections 20 and 22 (Section 20–22, Occupational Safety and Health Act of 1970) has the responsibility to conduct
This research relates to occupational safety and health problems in the coal mining industry. In recent years, coal mining safety has attained national attention due to highly publicized disasters. Despite these threats to worker safety and health, the U.S. relies on coal mining to meet its electricity needs. For this reason, the coal mining industry must continue to find ways to protect its workers while maintaining productivity. One way to do so is through improving the safety culture at coal mines. In order to achieve this culture, operators, employees, the inspectorate, etc. must share a fundamental commitment to it as a value. This type of culture is known in other industries as a “safety culture.” Safety culture can be defined as the characteristics of the work environment, such as the norms, rules, and common understandings that influence employees' perceptions of the importance that the organization places on safety.
NIOSH requests OMB approval to collect safety culture data from underground coal mine employees over a three-year period to continue the assessment of the current safety culture of underground coal mining in order to identify recommendations for promoting and ensuring the existence of a positive safety culture across the industry. Up to four underground coal mines will be studied for this assessment in an attempt to study mines of different characteristics. Small, medium, and large unionized as well as nonunionized mines will be recruited to diversify the research sample. Data will be collected one time at each mine; this is not a longitudinal study. The assessment includes the collection of data using several diagnostic tools: functional analysis, structured interviews, behavioral observations, and surveys.
It is estimated that across the four mines, approximately 1,144 respondents will be surveyed. The exact number of interviews conducted will be based upon the number of individuals in the mine populations, but it is estimated that, across the four mines, approximately 201 interviews will be conducted. An exact number of participants is unavailable at this time because not all mine sites have been selected.
The use of multiple methods to assess safety culture is a key aspect to the methodology. After all of the information has been gathered, a variety of statistical and qualitative analyses are conducted on the data to obtain conclusions with respect to the mine's safety culture. The results from these analyses will be presented in a report describing the status of the behaviors important to safety culture at that mine.
Data collection for this project had previously taken place between the dates of January 1, 2010 and May 1, 2012. During this time period, safety culture assessments were conducted at five underground coal mines, including one small, two medium, and two large mines located in the Northern Appalachian, Central Appalachian, Southern Appalachian, and Western coal regions. One of the assessments was conducted at a unionized mine and the four other assessments were conducted at non-union mines. Data were collected from 274 interview participants and 1,356 survey respondents.
From this previous data collection, some trends are beginning to emerge. These include safety culture characteristic differences depending on the size of the mine and also differences between union and non-union mines. However, the sample of participating mines from the previous data collection is not sufficient for conclusions to be drawn regarding these emerging trends. Therefore, the need for continuation of data collection is needed in order to include additional union mines and small mines into the study sample.
Upon completion, this project will provide recommendations for the enactment of new safety practices or the enhancement of existing safety practices across the underground coal mining industry. This final report will present a generalized model of a positive safety culture for underground coal mines that can be applied at individual mines. In addition, all study measures and procedures will be available for mines to use in the future to evaluate their own safety cultures. There is no cost to respondents other than their time. The total estimated annualized burden hours are 582.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–7570 or send an email to
Adoption, Health Impact and Cost of Smoke-Free Multi-Unit Housing—New—National Center for Chronic
The health risks associated with cigarette smoking and exposure to Secondhand Smoke (SHS) are well established. In 2006, the Surgeon General's report documented that over the past two decades, the scientific, engineering and medical literature have established a wide range of adverse health effects from SHS. The Surgeon General's report concluded that there is no safe level of exposure to SHS.
Approximately 85 million Americans reside in multi-unit housing (MUH) facilities, which comprise nearly 30% of all housing in the U.S. Although residents may choose not to smoke, they may still be exposed to SHS through the routine operation of facility-wide heating, ventilating and air conditioning systems.
The private sector has begun to institute smoke-free policies in MUH on a voluntary basis through changes in leasing agreements and advertising, however, smoking restrictions in MUH have largely been limited to common areas and spaces, not individual dwelling units. There are no studies that have examined the impact of smoke free policies by comparing pre- and post SHS exposure and changes in health outcomes after local governments adopt regulatory policies that protect residents from the effects of exposure to SHS in their housing units.
CDC proposes to conduct a study to address the gap in scientific evidence about the impact of jurisdiction-wide strategies (hereafter known as smoke-free MUH policies) to protect individuals from SHS in MUH settings. Through the collection and analysis of environmental and biometric data, the study will demonstrate how SHS exposure can be measured and will quantify how exposure changes when smoke-free policies are implemented. In addition, the study will examine barriers and facilitators to implementation of smoke-free policies in MUH and the cost-effectiveness of these policies. CDC is authorized to conduct this investigation by the Public Health Service Act. The activities are funded through the Prevention and Public Health Fund of the Patient Protection and Affordable Care Act.
The proposed study consists of two components. The first component involves data collection in Los Angeles County, California, and includes a number of “intervention” communities that have adopted, or are scheduled to adopt, smoke-free MUH laws by mid-2012, as well as “comparison” communities that have not adopted laws regulating SHS in MUH. Communities being considered for participation in the study as intervention communities include Sierra Madre, Lawndale, Culver City, El Monte, Artesia, San Fernando, San Gabriel, Hawthorne, Carson, Huntington Park, South Pasadena, and Compton. Communities being considered for participation in the study as comparison communities include Lomita, Lynwood, Monrovia, Montebello, Alhambra, LaPuente, Monterey Park, Inglewood, Gardena, Maywood, El Segundo, and South Gate.
The availability of both intervention and comparison communities will enable use of a quasi-experimental, baseline and follow-up study design for examining the impact of smoke-free policies in MUH. Over a period of two years, a sample of 500 MUH residents and 130 MUH operators will be selected from intervention cities and a comparable sample of 500 MUH residents and 130 MUH operators will be selected from comparison cities. Baseline and follow-up surveys will be conducted involving MUH operators, MUH residents, and parents of children who reside in MUH facilities. Also, MUH residents will be recruited to collect environmental air quality data, and both parents and children who reside in MUH facilities will be recruited to provide saliva samples. These samples will be analyzed for the presence of cotinine, a biomarker of exposure to SHS.
The second component of the study will involve focus groups in Maine, Minnesota, and Florida—states have adopted and implemented smoke-free MUH policies for a longer period of time, either as a response to local regulations or voluntarily. A one-time survey of MUH operators will be conducted, and a sample of 12 MUH operators will be selected from communities in Minnesota, Maine, and Florida. In addition, a total of 120 residents will be selected to participate in short focus groups, with a maximum of 4 focus groups per state. The primary data sources for this component of the study will be (a) quantitative data obtained from interviews with 12 MUH operators (4 operators in the three study locations, using the same questionnaire as Los Angeles County); (b) qualitative data from participants from up to 12 focus groups (an expected total of 120 residents); and (c) quantitative data on the same residents from pre-focus group questionnaires. Results from studies in these three geographic areas and from cities in LA County, will provide insights more useful at the national population level than results based solely on information collected in LA County.
OMB approval is requested for two years. Participation is voluntary. The only cost to respondents is their time. The total estimated annualized burden hours are 1,920.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–7570 or send an email to
Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery—NEW—Centers for Disease Control and Prevention (CDC), National Institute for Occupational Safety and Health (NIOSH).
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the CDC has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
To request additional information, please contact Kimberly S. Lane, Reports Clearance Officer, Centers for Disease Control and Prevention, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received no comments in response to the 60-day notice published in the
This is a new collection of information. Respondents will be screened and selected from Individuals and Households, Businesses, Organizations, and/or State, Local or Tribal Government. Below we provide CDC's projected annualized estimate for the next three years. There is no cost to respondents other than their time. The estimated annualized burden hours for this data collection activity are 28,750.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–7570 or send an email to
Evaluation of the Young Sisters Initiative: A Guide to A Better You! Program—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In 2010, the Centers for Disease Control and Prevention (CDC) launched the three-year Breast Cancer in Young Women (BCYW) project to raise awareness about these issues among young breast cancer survivors (YBCS) and to provide psychosocial and reproductive health support to women who are diagnosed before age 45. A key component of the BCYW program is the design, testing, implementation and evaluation of the Young Sisters Initiative: A Guide to a Better You (YSI) program. The YSI program is a web-based intervention designed to provide African American YBCS with culturally tailored psychosocial and reproductive health information to support their needs as cancer survivors.
CDC plans to conduct a process evaluation of YSI program implementation in conjunction with Sisters Network Inc. (SNI), a partner organization, and ICF International, an evaluation contractor. Information will be collected to assess whether the YSI program can be implemented with fidelity; reach its target audience of African American YBCS; and deliver effective psychosocial and reproductive health information and support. The process evaluation will also collect information to improve understanding of facilitators and barriers to YSI program recruitment and implementation, and to assess how the program might be adapted for use with other audiences.
Primary information collection will consist of two Web-based surveys of YSI program users, conducted before and after exposure to YSI program materials. The initial five-minute demographic screener will be conducted when users encounter the YSI Web site. Respondents will be asked to provide demographic and health information necessary for identifying members of the target YSI program audience, and to indicate their willingness to complete a brief online post-use survey one to two weeks after their initial YSI program Web site visit. The post-use survey will be conducted after YSI Web site users have time to review the site and materials. The estimated burden for the post-use survey is 20 minutes. Respondents will be asked questions about the usefulness of resources posted on the YSI Web site and satisfaction with the site. No personally identifiable information will be collected.
Two secondary sources of information will be used to supplement the process evaluation data collection, but will not impose burden on YSI Web site users. First, CDC's evaluation contractor will use information obtained through Google Analytics to assess how visitors (particularly the target audience) navigate and use the YSI Web site. In addition, the evaluation contractor will conduct a limited number of telephone interviews with SNI staff and SNI-identified recruitment partners before and after the YSI implementation to assess fidelity to the YSI program core components and identify any facilitators and/or barriers experienced during program implementation.
CDC will use the results of the process evaluation to inform future efforts to support and educate YBCS in vulnerable/minority populations. OMB approval is requested for one year. Participation in the information collection is voluntary, and there are no costs to respondents other than their time. The total estimated annualized burden hours are 142.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Kimberly S. Lane, at 1600 Clifton Road, MS D–74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
The National Hospital Care Survey (NHCS)—Revision Exp. 4/30/2014—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect statistics on the extent and nature of illness and disability of the population of the United States. This three-year clearance request for the National Hospital Care Survey includes data collection from hospital inpatient departments; hospital ambulatory departments including emergency departments (ED), outpatient departments (OPD), and ambulatory surgery locations (ASLs); and freestanding ambulatory surgery centers (ASCs).
The National Center for Health Statistics' (NCHS) surveys on hospital care include the National Hospital Discharge Survey (NHDS) (OMB No.0920–0212) and the National Hospital Ambulatory Medical Care Survey (NHAMCS) (OMB No. 0920–0234). NHDS, between 1965 and 2010, provided critical information on the utilization of the nation's non-Federal short-stay hospitals and on the nature and treatment of illness among the inpatient hospitalized population. NHAMCS has provided data annually since 1992 concerning the nation's use of hospital emergency and outpatient departments. Beginning in 2009 NHAMCS collected data on hospital based ambulatory surgery locations, and in 2010 began collection of data from free-standing ambulatory surgery centers. NHAMCS data have been extensively used for monitoring changes and analyzing the types of outpatient care provided in the nation's hospitals.
The Drug Abuse Warning Network (DAWN) (OMB No. 0930–0078, expired 12/31/2011) collected specific information on drug-related visits to the ED. DAWN was previously funded by the Center for Behavioral Health Statistics & Quality (CBHSQ) of the Substance Abuse & Mental Health Services Administration (SAMHSA), DHHS.
NCHS is integrating the data collected from NHDS, NHAMCS, and DAWN into one survey called the National Hospital Care Survey (NHCS). This integration will increase the wealth and depth of data on health care utilization and allow for linkages to other data sources such as the National Death Index and data from Centers for Medicare and Medicaid Services (CMS).
Since May 2011, a sample of 500 hospitals drawn for NHCS is being recruited, and participating hospitals are submitting inpatient level data in the form of electronic Uniform Bill (UB–04) administrative claims data as well as facility level data. This activity continues in 2013 in addition to the sampled hospitals being asked to provide data on the utilization of health care provided in their EDs, OPDs and ASLs, thus integrating the NHDS, NHAMCS, and DAWN into NHCS. If funding becomes available, a new sample of freestanding ASCs will be recruited sometime within the 3-year clearance period.
NHCS will replace NHDS, NHAMCS, and DAWN, but continue to provide nationally representative data on utilization of hospital care and general purpose health care statistics on inpatient care as well as care delivered in EDs, OPDs, ASLs, and freestanding ASCs.
Facility-level, patient-level, discharge-level, and visit-level, data items will be collected from the recruited hospitals and freestanding ASCs in NHCS. Facility- level data items will include ownership, number of staffed beds, clinical capabilities, financial information, and electronic health record adoption. Patient-level data items will be collected for both inpatient and ambulatory components and include basic demographic information, personal identifiers, name, address, social security number (if available), and medical record number (if available). For the inpatient component, discharge-level data will be collected through the UB–04 claims and will include: admission and discharge dates, diagnoses, diagnostic services, and surgical and non-surgical procedures. For the ambulatory component, visit-level data will be collected through the UB–04 claims as well as through abstraction of a sample of medical records, which includes reason for visit, diagnosis, procedures, medications, and patient disposition.
We expect that the users of NHCS will be similar to the users of NHDS, NHAMCS, and DAWN data. These users include but are not limited to CDC, Congressional Research Office, Office of the Assistant Secretary for Planning and Evaluation (ASPE), National Institutes of Health, American Health Care Association, Centers for Medicare & Medicaid Services (CMS), Bureau of the Census, Office of National Drug Control Policy, state and local governments, and nonprofit organizations. Other users of these data include universities, research organizations, many in the private sector, foundations, and a variety of users in the print media.
Data collected through NHCS are essential for evaluating health status of the population, for the planning of programs and policy to elevate the health status of the Nation, for studying morbidity trends, and for research activities in the health field. Historically, NHDS and NHAMCS data have been used extensively in the development and monitoring of goals
There is no cost to respondents other than their time to participate.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 and send comments to Ron Otten, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Title: National Notifiable Disease Surveillance System (NNDSS), OMB Control No. 0920–0728, Revision Exp. 01/31/2014, Office of Surveillance, Epidemiology, and Laboratory Services (OSELS), Public Health Surveillance and Informatics Program Office (PHSIPO) {Proposed} Centers for Disease Control and Prevention (CDC).
The Public Health Services Act (
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Ron Otten, at 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Evaluation of Dating Matters: Strategies to Promote Healthy Teen Relationships
Dating Matters: Strategies to Promote Healthy Teen Relationships
To address the gaps in research and practice, CDC has developed
The primary goal of the current proposal is to expand and add instruments to the approved outcome and implementation evaluation of Dating Matters in the four metropolitan cities to determine its feasibility, cost, and effectiveness. In the evaluation, a standard model of TDV prevention (Safe Dates administered in 8th grade) will be compared to a comprehensive model (programs administered in 6th, 7th, and 8th grade as well as parent, educator, policy, and communications interventions).
For the
There are no costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
EHS-Net National Voluntary Environmental Assessment Information System (NVEAIS)—New—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The CDC is requesting OMB approval for a National Voluntary Environmental Assessment Information System to collect data from foodborne illness outbreak environmental assessments routinely conducted by local, state, territorial, or tribal food safety programs during outbreak investigations. Environmental assessment data are not currently collected at the national level. The data reported through this information system will provide timely data on the causes of outbreaks, including environmental factors associated with outbreaks, and are essential to environmental public health regulators' efforts to respond more effectively to outbreaks and prevent future, similar outbreaks.
The information system was developed by the Environmental Health Specialists Network (EHS-Net), a collaborative project of federal and state public health agencies. The EHS-Net has developed a standardized instrument for reporting data relevant to foodborne illness outbreak environmental assessments.
State, local, tribal, and territorial food safety programs are the respondents for this data collection. Although it is not possible to determine how many programs will choose to participate, as NVEAIS is voluntary, the maximum potential number of program respondents is approximately 3,000.
These programs will be reporting data on outbreaks, not their programs or personnel. It is not possible to determine exactly how many outbreaks will occur in the future, nor where they will occur. However, we can estimate, based on existing data, that a maximum of 1,400 foodborne illness outbreaks will occur annually. Only programs in the jurisdictions in which these outbreaks occur would report to NVEAIS. Consequently, we have based our respondent burden estimate on the number of outbreaks likely to occur each year. Assuming each outbreak occurs in a different jurisdiction, there will be one respondent per outbreak.
There are three activities associated with NVEAIS that require a burden estimate. The first activity is the manager interview that will be conducted at each establishment associated with an outbreak. Most outbreaks are associated with only one establishment; however, some are associated with multiple
The second activity is entering all requested environmental assessment data into NVEAIS. This will be done once for each outbreak. This will take approximately 2 hours per outbreak.
Additionally, all food safety program personnel participating in NVEAIS will also have to take training on how to conduct environmental assessments, how to enter data into NVEAIS, and how to conduct the manager interview. We estimate the burden of this training to be a maximum of 12 hours. Respondents will only have to take this training one time. Assuming a maximum number of outbreaks of 1,400, the estimated burden for this training is 16,800.
The total estimated annual burden is 21,467 hours (see Table). There is no cost to the respondents other than their time.
Family and Youth Services Bureau, ACYF, ACF, HHS.
Notice of the award of single-source expansion supplement grants to nine Personal Responsibility Education Program Innovative Strategies (PREIS) grantees to support the expansion of program services necessary to meet the requirements for reporting performance measures, conducting evaluation-related activities, and strengthening program outcomes for youth participants.
The Administration on Children, Youth and Families (ACYF), Family and Youth Services Bureau (FYSB), Division of Adolescent Development and Support (DADS) announces the award of single-source expansion supplement grants to nine PREIS grantees for the purpose of expanding program participation and/or sites to support the increase of data necessary to determine the level of program effectiveness. In FY 2010, FYSB awarded thirteen cooperative agreement grants under Funding Opportunity Announcement (FOA) number: OPHS/OAH/TPP PREP Tier 2–2010. Under this FOA a total of $9.7 million was made available on a competitive basis to implement and test innovative strategies.
Single-source program expansion supplement awards are made to the following PREIS grantees:
September 30, 2012–September 29, 2013.
Marc Clark, Program Director, Adolescent Pregnancy Prevention Program, Division of Adolescent Development and Support, Family and Youth Services Bureau, 1250 Maryland Avenue SW. Suite 800, Washington, DC 20024. Telephone: 202–205–8496; Email:
The award of nine single source expansion supplement grants to PREIS grantees is required because of the necessary expansion of the original scope of approved activities. In reviewing grantees' aggressive program and evaluation plans, combined with recruitment efforts to date, FYSB has determined that that these nine grantees
Additionally, grantees are required to report on performance measures that were specifically defined by FYSB. The data collection will require additional grantee staff time and other resources to compile and report on performance indicators. Performance indicators are based upon the performance measures established by HHS to include: (a) The number of youth served and hours of service delivery; (b) fidelity to the program model, or adaptation of the program model for the target population; (c) community partnerships and competence in working with the target population; (d) reported gains in knowledge and intentions, and changes in self-reported behaviors of participants; and (e) community data, such as birth rates and the incidence of sexually transmitted infections.
Award amounts for the nine single source expansion supplement grants total $758,876 and will support activities from September 30, 2012 through September 29, 2013.
Section 2953 of the Patient Protection and Affordable Care Act of 2010, Pub. L. 111–148, which adds a new Section 513 to Title V of the Social Security Act, to be codified at 42 U.S.C. § 713, authorizing the Personal Responsibility Education Program.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Acute Bacterial Sinusitis: Developing Drugs for Treatment.” This guidance addresses FDA's current thinking regarding the overall development program and clinical trial designs for drugs to support an indication for the treatment of acute bacterial sinusitis (ABS). This guidance finalizes the revised draft guidance of the same name issued on October 30, 2007.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
Joseph G. Toerner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, rm. 6244, Silver Spring, MD 20993–0002, 301–796–1300.
FDA is announcing the availability of a guidance for industry entitled “Acute Bacterial Sinusitis: Developing Drugs for Treatment.” The purpose of this guidance is to assist sponsors in the overall clinical development program of drugs to support an indication for the treatment of ABS. This guidance finalizes the revised draft guidance published on October 30, 2007, which in turn revised the draft guidance for industry, entitled “Acute Bacterial Sinusitis—Developing Antimicrobial Drugs for Treatment,” published in 1998. Changes from the revised draft guidance are incorporated in the appropriate sections of the guidance and are based on comments submitted to the docket for the draft guidance. In addition, developments in scientific and medical information and technology in the treatment of ABS are reflected in this guidance. This guidance fulfills the requirement set forth in the Food and Drug Administration Amendments Act of 2007 that directed FDA to update the ABS guidance within 5 years.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on developing drugs for the treatment of ABS. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR parts 312 and 314 have been approved under 0910–0014 and 0910–0001, respectively.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Department of Homeland Security.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Academic Advisory Council (HSAAC) will meet on October 24, 2012 in Washington, DC. The meeting will be open to the public.
The HSAAC will meet Wednesday, October 24, 2012, from 10:00 a.m. to 4:00 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at Ronald Reagan International Trade Center, 1300 Pennsylvania Avenue NW., Floor B, Room B1.5–10, Washington, DC 20004. All visitors to the Ronald Reagan International Trade Center must bring a Government-issued photo ID. Please use the main entrance on 14th Street, NW.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, send an email to
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the
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Two fifteen-minute public comment periods will be held during the meeting on October 24, 2012, the first occurring between approximately 11:00 a.m. and 12:30 p.m.; the second occurring between approximately 2:30 p.m. and 4:00 p.m. Speakers will be requested to
Lindsay Burton, Office of Academic Engagement/Mailstop 0440; Department of Homeland Security; 245 Murray Lane SW., Washington, DC 20528–0440, email:
Notice of this meeting is given under the
The five HSAAC subcommittees (Student and Recent Graduate Recruitment, Homeland Security Academic Programs, Academic Research and Faculty Exchange, International Students, and Campus Resilience) will give progress reports and may present draft recommendations for action in response to initial taskings issued by Secretary Napolitano at the March 20, 2012 full committee meeting, including: how to attract student interns, student veterans, and recent graduates to jobs at DHS; how to use social media and other means of communication to most effectively reach this audience; how to ensure that students and recent graduates of Historically Black Colleges and Universities, Hispanic Serving Institutions, Tribal Colleges and Universities, and other Minority Serving Institutions know of and take advantage of DHS internship and job opportunities; how to define the core elements of a homeland security degree at the associate's, bachelor's and master's levels; how to apply the TSA Associates Program model to other segments of the DHS workforce who wish to pursue a community college pathway; how to form relationships with 4-year schools so that DHS employees' credits transfer towards a higher level degree; how to enhance existing relationships between FEMA's Emergency Management Institute and the higher education community to support Presidential Policy Directive 8 (PPD–8): National Preparedness, expand national capability, and support a whole community approach; how to expand DHS cooperation with the Department of Defense academies and schools to provide DHS' current employees with educational opportunities; how academic research can address DHS' biggest challenges; how DHS operational Components can form lasting relationships with universities to incorporate scientific findings and R&D into DHS' operations and thought processes; how universities can effectively communicate to DHS the universities' emerging scientific findings and technologies that will make DHS operations more effective and efficient; how to create a robust staff/faculty exchange program between academe and DHS; how DHS can improve its international student processes and outreach efforts; how DHS can better communicate its regulatory interpretations, policies and procedures to the academic community; how DHS can accommodate and support emerging trends in international education; how colleges and universities use specific capabilities, tools, and processes to enhance campus and community resilience as well as the cyber and physical infrastructure; how DHS' grant programs may be adjusted to support resiliency-related planning and improvements; how campuses can better integrate with community planning and response entities; how to implement the whole community approach and preparedness culture within student and neighboring communities; how to strengthen ties between DHS' Federal Law Enforcement Training Center and campus law enforcement professionals; and how DHS can better coordinate with individual campus IT departments on the risks towards and attacks on computer systems and networks.
Lauren Kielsmeier,
Coast Guard, DHS.
Notice of Federal Advisory Committee Meeting.
The National Boating Safety Advisory Council (NBSAC) and three of its subcommittees will meet on November 9–11, 2012, in Watsonville, CA, to discuss issues relating to recreational boating safety. The meetings will be open to the public.
NBSAC will meet Friday, November 9, 2012, from 8:30 a.m. to 11:45 a.m. and Sunday, November 11, 2012, from 9 a.m. to 1:30 p.m. The Boats and Associated Equipment Subcommittee will meet on Friday, November 9, 2012 from 1:15 p.m. to 5 p.m., the Prevention through People Subcommittee will meet on Saturday, November 10, 2012 from 9 a.m. to 12:30 p.m., and the Recreational Boating Safety Strategic Planning Subcommittee will meet on Saturday, November 10, 2012 from 1:45 p.m. to 5 p.m. Please note that the meetings may conclude early if NBSAC has completed all business.
All written materials, comments, and requests to make oral presentations at the meeting should reach Mr. Jeff Ludwig, Assistant Designated Federal Officer (ADFO) for NBSAC by October 26, 2012. For contact information please see the
The meeting will be held in the Boathouse Room of the West Marine Watsonville Support Center, located at 500 Westridge Dr., Watsonville, CA 95076.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Mr. Jeff Ludwig as soon as possible.
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Agenda” section below. Comments must be submitted in writing no later than October 26, 2012, and must be identified by (USCG–2010–0164) and may be submitted by
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Opportunities for public comment will be held during the meeting concerning the matters being discussed. Public comments will be limited to three minutes per speaker. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact the individual listed below to register as a speaker.
Mr. Jeff Ludwig, ADFO for NBSAC, COMDT (CG–BSX–21), 2100 2nd Street SW., Stop 7581, Washington, DC 20593; (202) 372–1061;
Notice of this meeting is given under the
The agenda for NBSAC meeting is as follows:
(1) Opening Remarks—Mr. James P. Muldoon, NBSAC Chairman and RDML Joseph Servidio, Assistant Commandant for Prevention Policy (Invited);
(2) Swearing-in of Newly Appointed Members
(3) Receipt and discussion of the following reports:
(a) Chief, Office of Auxiliary and Boating Safety, Update on the Coast Guard's implementation of NBSAC Resolutions and Recreational Boating Safety Program report.
(b) Assistant Designated Federal Officer's report concerning Council administrative and logistical matters.
(4) Presentation on the Coast Guard's progress in implementing NBSAC's Recommendation Regarding the Development of New Life Jacket Standards and Approval Processes for Life Jackets.
(5) Public comment.
(1) Receipt and Discussion of the Strategic Planning, Boats & Associated Equipment, and Prevention through People Subcommittees reports.
(2) Public comment period. Members of the public will have an opportunity to provide comments on each subcommittee's report prior to the NBSAC members taking action on each report.
A more detailed agenda can be found at:
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice of an increase of the maximum amount for Small Project Grants to State and local governments and private nonprofit facilities for disasters declared on or after October 1, 2012.
William Roche, Recovery Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3834.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5121–5207, prescribes that FEMA must annually adjust the maximum grant amount made under section 422, Simplified Procedures, relating to the Public Assistance program, to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor.
FEMA gives notice of an increase in the maximum amount of any Small Project Grant made to the State, local government, or to the owner or operator of an eligible private nonprofit facility, under section 422 of the Stafford Act, to $67,500 for all disasters declared on or after October 1, 2012.
FEMA bases the adjustment on an increase in the Consumer Price Index for All Urban Consumers of 1.7 percent for the 12-month period ended in August 2012. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 14, 2012.
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice that the statewide per capita impact indicator under the Public Assistance program for disasters declared on or after October 1, 2012, will be increased.
William Roche, Recovery Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3834.
44 CFR 206.48 provides that FEMA will adjust the statewide per capita impact indicator under the Public Assistance program to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor.
FEMA gives notice that the statewide per capita impact indicator will be increased to $1.37 for all disasters declared on or after October 1, 2012.
FEMA bases the adjustment on an increase in the Consumer Price Index for All Urban Consumers of 1.7 percent for the 12-month period ended in August 2012. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 14, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Oklahoma (FEMA–4078–DR), dated August 22, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that the incident for this disaster has been expanded to include the Noble Wildfire.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Ohio (FEMA–4077–DR), dated August 20, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3886.
The notice of a major disaster declaration for the State of Ohio is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 20, 2012.
Vinton and Wyandot Counties for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Mississippi (FEMA–4081–DR), dated August 29, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3886.
The notice of a major disaster declaration for the State of Mississippi is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 29, 2012.
Copiah, Franklin, Jefferson, and Lamar Counties for Individual Assistance (already designated for Public Assistance, including direct federal assistance).
Jones County for Individual Assistance (already designated for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
Clarke County for Public Assistance [Categories C–G] (already designated for Individual Assistance and debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Washington (FEMA–4083–DR), dated September 25, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated September 25, 2012, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Washington resulting from a severe storm, straight-line winds, and flooding on July 20, 2012, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the “Stafford Act”). Therefore, I declare that such a major disaster exists in the State of Washington.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Kenneth K. Suiso, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Washington have been designated as adversely affected by this major disaster:
Ferry and Okanogan Counties and the Confederated Tribes of the Coleville Reservation for Public Assistance.
All counties and Indian Tribes in the State of Washington are eligible to apply for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice of the maximum amount for assistance under the Individuals and Households Program for emergencies and major disasters declared on or after October 1, 2012.
Michael Grimm, Recovery Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 212–1000.
Section 408 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5174, prescribes that FEMA must annually adjust the maximum amount for assistance provided under the Individuals and Households (IHP) Program. FEMA gives notice that the maximum amount of IHP financial assistance provided to an individual or household under section 408 of the Stafford Act with respect to any single emergency or major disaster is $31,900. The increase in award amount as stated above is for any single emergency or major disaster declared on or after October 1, 2012. In addition, in accordance with 44 CFR 61.17(c), this adjustment includes the maximum amount of available coverage under any Group Flood Insurance Policy (GFIP) issued for those disasters.
FEMA bases the adjustment on an increase in the Consumer Price Index for All Urban Consumers of 1.7 percent for the 12-month period ended in August 2012. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 14, 2012.
Fish and Wildlife Service, Interior.
Notice of availability; announcement of meetings; request for comments.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of our Draft Comprehensive Conservation Plan and Environmental Assessment (Draft CCP/EA) for the Rose Atoll National Wildlife Refuge (NWR/refuge) for public review and comment. In the Draft CCP/EA, we present two alternatives for managing this refuge for the next 15 years, as well as related compatibility determinations for the preferred alternative.
To ensure consideration, please send your written comments by November 9, 2012. We will hold public meetings; see
You may submit comments or view or obtain copies of the Draft CCP/EA by any of the following methods. You may request a hard copy or CD–ROM.
For more information on locations for viewing or obtaining documents,
Frank Pendleton, Refuge/Monument Manager, (684) 633–7082, ext. 15.
With this notice, we announce the availability of our Draft CCP/EA for Rose Atoll NWR. We started this process through a notice of intent (NOI) in the
Rose Atoll NWR is located in American Samoa and was established in 1973 to conserve and protect fish and wildlife resources.
The National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (together referred to as the Refuge Administration Act), 16 U.S.C. 668dd–668ee, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the National Wildlife Refuge System mission, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
We began the public scoping phase of the CCP planning process by publishing the NOI, which was followed by a series of public open houses in November 2009. Simultaneously, we released Planning Update 1, which identified initial issues for scoping. Planning Update 2 was released in May 2011 and identified the issues raised during public scoping that would be considered in the CCP process. We also met individually with partner agencies, elected officials, and others in the community. We considered all of the public comments received to date during development of the Draft CCP/EA.
During our CCP planning process, we identified several issues. To address these issues, we developed and evaluated the following alternatives in our Draft CCP/EA.
Under Alternative A, existing refuge management activities would continue, including protection, maintenance, and restoration of habitats that support priority species, such as seabirds, shorebirds, turtles, native plants, reef fish, invertebrates, and coralline algae. Management activities include monitoring, pest species management, and restoration projects, such as the removal of debris from a 1993 shipwreck. The refuge is closed to the general public, and entry is limited to those who have been issued a special use permit (SUP).
Under Alternative B, enhanced habitat restoration, monitoring, and outreach are proposed. Increasing the frequency of management trips to the refuge and fortifying close partnerships with the American Samoa Government, National Oceanic and Atmospheric Administration, National Park Service, U.S. Geological Survey, and other partners are key to this alternative. A remote sensing system would be set up to monitor nesting seabirds, turtles, and other wildlife. Restoration of the littoral forest on Rose Island by extirpating introduced ants and the scale insect (
Refuge staff would provide outreach and interpretation opportunities and develop an environmental education program focusing on “bringing the refuge to the people.” Appropriate cultural practices would also be facilitated through expanding refuge management activities related to cultural resources (e.g., working with the American Samoa Historical Preservation Office and other partners to conduct archaeological surveys at Rose Atoll NWR, integrating cultural resources into interpretation, and increasing dialogue with the Office of Samoan Affairs and local villagers).
In addition to any methods in
We will hold the following public meetings: October 16, 2012, at Sadie's by the Sea at 2 p.m.; October 23, 2012, at the Ofu Community Center at 9 a.m.; October 23, 2012, at the Ta'ū High School gym at 2 p.m. For more information on the meeting(s), contact the person under
After this comment period ends, the planning team will evaluate your comments and consider their incorporation into the final CCP.
Before including your address, telephone number, email address, or other personal identifying information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you can ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice.
The State of Alaska has filed an application with the Bureau of Land Management (BLM) for a Recordable Disclaimer of Interest from the United States in those lands underlying the Kisaralik River System (including Kisaralik Lake) in western Alaska. The State asserts that the Kisaralik River System was navigable and unreserved at the time of statehood; therefore, title to the submerged lands passed to the State at the time of statehood (1959). This river system is within the exterior boundaries of the Yukon Delta National Wildlife Refuge, created by the Alaska National Interest Lands Conservation Act of 1980, and administered by the U.S. Fish and Wildlife Service.
All comments to this action should be received on or before January 7, 2013.
Comments on the State of Alaska's application or the BLM Draft Summary Report must be filed with the BLM Chief, Branch of Survey Planning and Preparation (AK–9270), Division of Cadastral Survey. You may submit comments by any of the following methods:
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Angie Nichols, Program Manager, telephone: 907–271–3359; address: 222 W. 7th Avenue, #13, Anchorage, AK 99513–7504; Email:
On November 30, 2010, the State of Alaska filed an application for a Recordable Disclaimer of Interest pursuant to Section 315 of the Federal Lands Policy and Management Act of 1976 and the regulations contained in 43 CFR subpart 1864 for the lands underlying the Kisaralik River (AA–92408). A Recordable Disclaimer of Interest, if issued, will confirm that the United States has no valid interest in the subject lands. The notice is intended to notify the public of the pending application and the State's grounds for supporting it. The State asserts that this river system was navigable and unreserved at the time of statehood; therefore, under the Equal Footing Doctrine, the Submerged Lands Act of 1953, the Alaska Statehood Act, the Alaska Right of Way Act of 1898, and other title navigability law, ownership of these lands underlying the river automatically passed from the United States to the State at the time of statehood in 1959.
The State's application, AA–92408, is for “submerged lands and bed up to and including the ordinary high water line of Kisaralik Lake within Township 3 North, Range 58 West, Seward Meridian and for the submerged lands and bed of the Kisaralik River lying between the ordinary high water lines of the right and left banks of that river from the outlet of Kisaralik Lake within Township 3 North, Range 58 West, Seward Meridian, Alaska, downstream to the location where the river enters the Kuskokuak Slough within Township 9 North, Range 67 West, Seward Meridian, Alaska. This includes the submerged lands and beds of all sloughs, braids, and channels that carry water from the navigable Kisaralik River and thus are part of the navigable river and all lands within the river system permanently or periodically covered by tidal waters up to the line of mean high tide.” The State identified the Kokarmiut Corporation, Calista Corporation, and the U.S. Fish and Wildlife Service as possible interested parties of the affected lands.
A final decision on the merits of the application will not be made before January 7, 2013. During the 90-day period, interested parties may comment on the State's application, AA–92408, and supporting evidence. The State's application and the BLM Draft Summary Report may be viewed on the BLM's Recordable Disclaimer of Interest Web site at
Comments filed with the Division of Cadastral Survey, including names and street addresses of commenters, will be available for public inspection at the Alaska State Office (see
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If no valid objection is received, a Disclaimer of Interest may be approved, if all else is proper, stating that the
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Arizona.
The plats of survey of the described lands were officially filed in the Arizona State Office, Bureau of Land Management, Phoenix, Arizona, on dates indicated.
The plat representing the dependent resurvey of a portion of the west boundary, the survey of a portion of the subdivisional lines and the subdivision of certain sections, Township 30 North, Range 20 East, accepted September 24, 2012, and officially filed September 26, 2012, for Group 1098, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
A person or party who wishes to protest against any of these surveys must file a written protest with the Arizona State Director, Bureau of Land Management, stating that they wish to protest.
A statement of reasons for a protest may be filed with the notice of protest to the State Director, or the statement of reasons must be filed with the State Director within thirty (30) days after the protest is filed.
These plats will be available for inspection in the Arizona State Office, Bureau of Land Management, One North Central Avenue, Suite 800, Phoenix, Arizona 85004–4427. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
National Park Service, Interior.
Notice of Meeting.
As required by the Federal Advisory Committee Act, the National Park Service (NPS) is hereby giving notice that the Advisory Committee on the Star-Spangled Banner National Historic Trail will hold a meeting. Designated through an amendment to the National Trails System Act (16 U.S.C. 1241), the trail consists of “water and overland routes totaling approximately 290 miles, extending from Tangier Island, Virginia, through southern Maryland, the District of Columbia, and northern Virginia, in the Chesapeake Bay, Patuxent River, Potomac River, and north to the Patapsco River, and Baltimore, Maryland, commemorating the Chesapeake Campaign of the War of 1812 (including the British invasion of Washington, District of Columbia, and its associated feints, and the Battle of Baltimore in summer 1814).” This meeting is open to the public. Pre-registration is required for both public attendance and comment. Any individual who wishes to attend the meeting and/or participate in the public comment session should register via email at
The Star-Spangled Banner National Historic Trail Advisory Council will meet from 10:00 a.m. to 4:00 p.m. on Tuesday, October 17, 2012, (EASTERN).
John Maounis, Superintendent, Star-Spangled Banner National Historic Trail, telephone: (410) 260–2471.
Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), this notice announces a meeting of the Star-Spangled Banner National Historic Trail Advisory Council. Topics to be discussed include setting priorities for implementation of the Comprehensive Management Plan and collaborative education projects. Members of the public who would like to make comments to the Committee should preregister via email at
10 a.m., Tuesday, October 16, 2012.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC.
Open.
Approval of August 21, 2012 minutes; reports from the Chairman, the Commissioners, and senior staff; Mental Health Docket, and Short-Term Intervention for Success (SIS) update.
Patricia W. Moore, Staff Assistant to the
11:30 a.m., Tuesday, October 16, 2012.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC.
Closed.
Determination on two original jurisdiction cases.
Patricia W. Moore, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346–7001.
Occupational Safety and Health Administration (OSHA), Labor.
Notice; announcement of OMB approval of information collection requirements.
The Occupational Safety and Health Administration announces that the Office of Management and Budget (OMB) extended its approval for a number of information collection requirements found in sections of 29 CFR parts 1902, 1904, 1905, 1908, 1910, 1915, 1917, 1926, 1952, 1953, 1954, 1955, and 1956. OSHA sought approval of these requirements under the Paperwork Reduction Act of 1995 (PRA–95), and, as required by that Act, is announcing the approval numbers and expiration dates for these requirements.
This notice is effective October 9, 2012.
Todd Owen or Theda Kenney, Directorate of Standards and Guidance, Occupational Safety and Health Administration, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210, telephone: (202) 693–2222.
In a series of
In accordance with PRA–95 (44 U.S.C. 3501–3520), OMB renewed its approval for these information collection requirements, and assigned OMB control numbers to these requirements. The table below provides the following information for each of these information collection requirements approved by OMB: The title of the
In accordance with 5 CFR 1320.5(b), an agency cannot conduct, sponsor, or require a response to a collection of information unless the collection displays a valid OMB control number and the agency informs respondents that they need not respond to the collection of information unless it displays a valid OMB control number.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is 44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Hexavalent Chromium Standards for General Industry (29 CFR 1910.1026), Shipyard Employment (29 CFR 1915.1026), and Construction (29 CFR 1926.1126).
Comments must be submitted (postmarked, sent, or received) by December 10, 2012.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3468, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The information collection requirements specified in the Hexavalent Chromium (Cr(VI)) Standards for General Industry (29 CFR 1910.1026), Shipyard Employment (29 CFR 1915.1026), and Construction (29 CFR 1926.1126) (the “Standards”) protect workers from the adverse health effects that may result from occupational exposure to hexavalent chromium. The major information collection requirements in these Standards include conducting worker exposure monitoring, notifying workers of their chromium exposures, implementing medical surveillance of workers, providing examining physicians with specific information, implementing a respiratory protection program, demarcating regulated areas, implementing worker information and training programs, notifying laundry personnel of chromium hazards and maintaining workers' exposure monitoring and medical surveillance records for specific periods.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting an adjustment decrease in burden hours from 787,894 to 541,495 (a total decrease of 246,399 hours). The adjustment is primarily due to a reduction in plants and a decrease in covered workers, based on updated data.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627). Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration.
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the Aeronautics Committee of the NASA Advisory Council. The meeting will be held for the purpose of soliciting, from the aeronautics community and other persons, research and technical information relevant to program planning.
Thursday, October 25, 2012, 8 a.m. to 3 p.m.; and Friday, October 26, 2012, 8 a.m. to 12:15 p.m., Local Time.
Ohio Aerospace Institute (OAI); 22800 Cedar Point Road; Conference Room: The President's Room; Cleveland, OH 44142.
Ms. Susan L. Minor, Executive Secretary for the Aeronautics Committee, National Aeronautics and Space Administration Headquarters, Washington, DC 20546, (202) 358–0566, or
The meeting will be open to the public up to the capacity of the room. Any person interested in participating in the meeting by Webex and telephone should contact Ms. Susan L. Minor at (202) 358–0566 for the web link, toll-free number, and passcode. The agenda for the meeting includes the following topics:
• Glenn Research Center Overview
• NASA Aeronautics and National Research Council interactions
• Aviation Safety Research and Development
• Aeronautics Test Facilities Status
• Unmanned Aircraft Systems Subcommittee Outbrief
• Environmentally Responsible Aviation Phase 2 Status
It is imperative that these meetings be held on this date to accommodate the scheduling priorities of the key participants. For questions, please contact Brunilda DeJesus at (216) 433–2789 or
In accordance with Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463 as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463 as amended), the National Science Foundation announces the following meeting:
Nuclear Regulatory Commission.
License amendment request; opportunity to comment, request a hearing and petition for leave to intervene, order.
Comments must be filed by November 8, 2012. A request for a hearing must be filed by December 10, 2012. Any potential party as defined in section 2.4 of Title 10 of the Code of Federal Regulations a(10 CFR), who believes access to Sensitive Unclassified Non-Safeguards Information (SUNSI) is necessary to respond to this notice must request document access by October 19, 2012.
You may access information and comment submissions related to this document, which the NRC possesses and are publicly available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Please refer to Docket ID NRC–2012–0225 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
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Please include Docket ID NRC–2012–0225 in the subject line of your comment submission, in order to ensure
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This notice includes notices of amendments containing SUNSI.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, and the Commission has not made a final
All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the following three factors in 10 CFR 2.309(c)(1): (i) The information upon which the filing is based was not previously available; (ii) the information upon which the filing is based is materially different from information previously available; and (iii) the filing has been submitted in a timely fashion based on the availability of the subsequent information.
For further details with respect to these amendment actions, see the applications for amendment which are available for public inspection at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
The proposed amendment revises the Implementation Schedule of the PVNGS CSP. Implementation of the CSP itself does not involve any modifications to the safety-related structures, systems, or components (SSCs). The Implementation Schedule for the CSP describes how the requirements of 10 CFR 73.54 are to be implemented. The revision to the CSP Implementation Schedule will have no appreciable negative effect on the ability to identify, evaluate, and mitigate cyber attacks up to and including the design basis cyber attack threat, thereby achieving high assurance that the facility's digital computer and communications systems and networks are protected from cyber attacks. The revision of the CSP Implementation Schedule will not alter previously evaluated Updated Final Safety Analysis Report (UFSAR) design basis accident analysis assumptions, add any accident initiators, or affect the function of the plant safety-related SSCs as to how they are operated, maintained, modified, tested, or inspected.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
This proposed revision to the CSP Implementation Schedule continues to provide assurance that safety-related SSCs are protected from cyber attacks. Implementation of 10 CFR 73.54 with a revision to the CSP Implementation Schedule does not result in the need for any new or different UFSAR design basis accident analysis. It does not introduce new equipment that could create a new or different kind of accident, and no new equipment failure modes are created. As a result, no new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of this proposed amendment.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
The proposed revision to the CSP Implementation Schedule is administrative in nature and would not alter the way any safety-related SSC functions and would not alter the way the plant is operated. The proposed change provides an acceptable, interim level of “high assurance of adequate protection against cyber attacks.” The proposed revision would not introduce any new uncertainties or change any existing uncertainties associated with any safety limit.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Operation of ONS in accordance with the proposed amendment does not increase the probability or consequences of accidents previously evaluated. The Updated Final Safety Analysis Report (UFSAR) documents the analyses of design basis accidents (DBA) at ONS. The proposed amendment involves License Condition completion date changes only. It does not adversely affect accident initiators nor alter design assumptions, conditions, or configurations of the facility and does not adversely affect the ability of structures, systems, and components (SSCs) to perform their design function. SSCs required to safely shut down the reactor and to maintain it in a safe shutdown (SSD) condition will remain capable of performing their design functions.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any previously evaluated?
Operation of ONS in accordance with the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated. Any scenario or previously analyzed accident with offsite dose was included in the evaluation of DBAs documented in the UFSAR. The proposed amendment involves License Condition completion date changes only. It does not alter the requirements or function for systems required during accident conditions, nor will it result in new or different accidents. The proposed amendment does not adversely affect accident initiators nor alter design assumptions, conditions, or configurations of the facility. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. SSCs required to safely shut down the reactor and maintain it in a safe shutdown condition remain capable of performing their design functions.
3. Does the proposed amendment involve a significant reduction in the margin of safety?
Operation of ONS in accordance with the proposed amendment does not involve a significant reduction in the margin of safety. The proposed amendment involves License Condition completion date changes only. It does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed amendment does not adversely affect existing plant safety margins or the reliability of equipment assumed to mitigate accidents in the UFSAR. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. SSCs required to safely shut down the reactor and to maintain it in a safe shutdown condition remain capable of performing their design functions.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. The proposed change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and do not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. Because there is no change to these established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This proposed change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. Because there is no change to established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any accident initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications that affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This proposed change does not alter accident analysis assumptions, add any accident initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications that affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. Because there is no change to these established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any accident initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This proposed change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. Because there is no change to these established safety margins as [a] result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components (SSCs) relied upon to mitigate the consequences of postulated accidents, and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This proposed change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the SSCs relied upon to mitigate the consequences of postulated accidents, and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. Because there is no change to established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the
1. Does the proposed change involve a significant increase in the probability or consequences of an accident that has previously been evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. This proposed change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the Cyber Security Plan Implementation Schedule is administrative in nature. Because there is no change to these established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The non-proprietary version is WCAP–16045–NP–A, Addendum i-A (Reference 2 of Enclosure 1).
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed additional TS reference is not an accident initiator.
The assumed accident initiators are not changed by the introduction of the proposed TS reference. Therefore, operation of the facility in accordance with the proposed amendment will not involve a significant increase in the probability of an accident previously evaluated.
The use of the proposed method will not significantly impact the fission product inventory and transport assumptions in the current licensing basis analyses. Therefore, the radiological consequences of an accident previously evaluated will not increase.
The use of the proposed methods will not increase the consequences of an accident because Limiting Conditions for Operation will continue to restrict operation to within the regions that provide acceptable results, and Reactor Protective System trip setpoints will restrict plant transients so that the consequences of accidents will not exceed the safety analysis acceptance criteria.
Therefore, it is concluded that the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
This change does not alter the physical plant or modes of operation. The plant systems will not be operated outside of design limits, no different equipment will be operated, and system interfaces will not change. Thus, the proposed change does not adversely affect the design function or operation of any structures, systems, and components important to safety.
Therefore, it is concluded that the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
All safety limit values and Limited Conditions of Operability values given in the COLR will be calculated based on NRC approved methodologies. These values ensure the plant is operating in accordance with the TS.
Therefore, it is concluded the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requestor shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
It is so ordered.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Acceptance of a license application; opportunity to request a hearing and to petition for leave to intervene, and order.
Requests for a hearing and petitions for leave to intervene must be filed by December 10, 2012. Any potential party as defined in section 2.4 of Title 10 of the Code of Federal Regulations (10 CFR) who believes access to sensitive unclassified non-safeguards information (SUNSI) is necessary to respond to this notice must request document access by October 19, 2012.
Please refer to Docket ID NRC–2012–0224 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly-available, using any of the following methods:
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Marilyn Diaz, Project Manager, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–492–3172, email:
The U.S. Nuclear Regulatory Commission (NRC or the Commission) has accepted, for detailed technical review, a March 2, 2011, application for a new license for the possession and use of special nuclear material (SNM) for assaying spent nuclear fuel for fissile material inventory as part of their research program at the RPI. The applicant requested the new license for a term of 10 years. The license application (LA), if approved, would authorize the RPI to possess and use special nuclear material under 10 CFR part 70, “Domestic Licensing of Special Nuclear Material.”
The RPI requested a license to possess and use SNM as part of their research program to conduct tests for the purpose of demonstrating methods to assay spent nuclear fuel for fissile material inventory using a lead slowing down spectrometer. The original application was submitted on March 2, 2011. By letter dated May 3, 2011, the NRC staff informed the applicant that the staff found the LA acceptable to begin a detailed technical review. The NRC staff requested the applicant to provide additional information essential to conducting a detailed technical review. The applicant submitted additional information in letters dated June 30, 2011, September 30, 2011, and a revised LA, dated March 27, 2012. The application has been docketed in Docket No. 70–7025.
If the NRC approves the LA, the basis for approval will be documented in a Safety Evaluation Report (SER) supporting the issuance of a new NRC License. The SER would contain the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations, for issuing an SNM license. The SER would also include a determination of the need to complete an Environmental Assessment based on the proposed action.
Requirements for submitting hearing requests and petitions for leave to intervene are found in 10 CFR 2.309, “Hearing Requests, Petitions to Intervene, Requirements for Standing, and Contentions.” Interested persons should consult 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, 11555 Rockville Pike, Room O1–F21, Rockville, Maryland 20852 (or call the PDR at 1–800–397–4209 or 301–415–4737). The NRC regulations are accessible electronically from the NRC Library on the NRC's public Web site at
Pursuant to 10 CFR 2.309(a), any person whose interest may be affected by this proceeding, and who wishes to participate as a party in the proceeding must file a written request for hearing and petition for leave to intervene. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. Pursuant to 10 CFR 2.309(d), the petition must provide the name, address, and telephone number of the petitioner; and explain the reasons why intervention should be permitted with particular reference to: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be entered in the proceeding on the petitioner's interest.
A request for hearing or petition for leave to intervene must also identify specific contentions that the petitioner seeks to have litigated in the proceeding. As required by 10 CFR 2.309(f), for each contention, the petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. The petitioner also must demonstrate that the issue raised by each contention is within the scope of the proceeding, and is material to the findings that NRC must make to support the granting of a license in response to
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC's regulations, policies, and procedures. The Licensing Board will set the time and place for any pre-hearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Petitions for leave to intervene and requests for hearing, and motions for leave to file new or amended contentions that are filed after the deadline in 10 CFR 2.309(b) will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the following three factors in 10 CFR 2.309(c)(1): (i) The information upon which the filing is based was not previously available; (ii) the information upon which the filing is based is materially different from information previously available; and (iii) the filing has been submitted in a timely fashion based on the availability of the subsequent information.
A State, local governmental body, Federally-recognized Indian tribe, or agency thereof may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1) and (2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by December 10, 2012. The petition must be filed in accordance with the filing instructions in section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under 2.309(h)(2) State and Federally-recognized Indian tribes do not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a), by making an oral or written statement of his or her position on the issues at any session of the hearing or at any pre-hearing conference, within the limits and conditions fixed by the presiding officer. However, that person may not otherwise participate in the proceeding.
All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the petitioner/requestor should contact the Office of the Secretary by Email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of acceptance and opportunity to request a hearing, any potential party who believes access to SUNSI is necessary to respond to this Notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered, absent a showing of good cause for the late filing addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff; and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email addresses for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3), the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding, and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the Notice of Hearing or Opportunity for Hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC's staff, either after
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff's determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff's determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff's determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for Protective Orders, in a timely fashion to minimize unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Standard review plan-draft section revision; request for comment.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is soliciting public comment on NUREG–0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition,” on a proposed Revision 3 to its Standard Review Plan (SRP), Section 19.0, “Probabilistic Risk Assessment and Severe Accident Evaluation for New Reactors.”
Submit comments by November 8, 2012. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may access information and comment submissions related to this document, which the NRC possesses and are publicly available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Ms. Amy E. Cubbage, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone at 301–415–2875 or email at
Please refer to Docket ID NRC–2012–0232 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly available, by any of the following methods:
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Please include Docket ID NRC–2012–0232 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The Office of New Reactors and the Office of Nuclear Reactor Regulation are revising SRP Section 19.0, which updates Revision 2 (ADAMS Accession No. ML071700652) dated June 2007, to reflect the changes as listed in the description of changes. These changes include (1) incorporation of guidance previously contained in Interim Staff Guidance (ISG), DC/COL–ISG–003 (ADAMS Accession No. ML081430087) concerning the review of probabilistic risk assessment (PRA) information and severe accident assessments for new reactors submitted to support design certification (DC) and combined license (COL) applications, (2) incorporation of guidance previously contained in ISG DC/COL–ISG–020 (ADAMS Accession No. ML100491233) concerning review of information from PRA-based seismic margin analyses submitted in support of DC and COL applications, (3) incorporation of guidance previously contained in ISG DI&C/COL–ISG–003 (ADAMS Accession No. ML080570048) concerning review of digital instrumentation and control system PRAs, including common cause failures in PRAs and uncertainty analysis associated with new reactor digital systems, and (4) incorporation of additional procedures for review of PRA information and severe accident assessments developed during NRC reviews of DC and COL applications completed after ISG DC/COL–ISG–003 was issued. A redline document comparing Revision 2 and the current proposed Revision 3 can be found under ADAMS Accession No. ML12153A008.
The NRC staff issues
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission.
Request for resumes.
The U.S. Nuclear Regulatory Commission (NRC) seeks qualified candidates for the Advisory Committee on Reactor Safeguards (ACRS). Submit resumes to Ms. Kendra Freeland, ACRS, Mail Stop T2E26, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, or email
The ACRS is a part-time advisory group, which is statutorily mandated by the Atomic Energy Act of 1954, as amended. ACRS provides independent expert advice on matters related to the safety of existing and proposed nuclear power plants and on the adequacy of proposed reactor safety standards. Of primary importance are the safety issues associated with the operation of 104 commercial nuclear power plants in the United States and regulatory initiatives, including risk-informed and performance-based regulation, license renewal, power uprates, and the use of mixed oxide and high burnup fuels. An increased emphasis is being given to safety issues associated with new reactor designs and technologies, including passive system reliability and thermal hydraulic phenomena, use of digital instrumentation and control,
See NRC Web site at
• Materials, metallurgy and reactor fuels.
• Fracture mechanics.
• Material degradation effects on reactor safety and operation.
• A distinguished record of achievement in one or more areas of nuclear science and technology.
Candidates with pertinent graduate level experience will be given additional consideration. Consistent with the requirements of the Federal Advisory Committee Act, the Commission seeks candidates with diverse backgrounds, so that the membership on the Committee is fairly balanced in terms of the points of view represented and functions to be performed by the Committee. Candidates will undergo a thorough security background check to obtain the security clearance that is mandatory for all ACRS members. The security background check will involve the completion and submission of paperwork to NRC. Candidates for ACRS appointments may be involved in or have financial interests related to NRC-regulated aspects of the nuclear industry. However, because conflict-of-interest considerations may restrict the participation of a candidate in ACRS activities, the degree and nature of any such restriction on an individual's activities as a member will be considered in the selection process. Each qualified candidate's financial interests must be reconciled with applicable Federal and NRC rules and regulations prior to final appointment. This might require divestiture of securities or discontinuance of certain contracts or grants. Information regarding these restrictions will be provided upon request. As a part of the Stop Trading on Congressional Knowledge Act of 2012, which bans insider trading by members of Congress, their staff, and other high-level federal employees, candidates for appointments will be required to disclose additional financial transactions.
A resume describing the educational and professional background of the candidate, including any special accomplishments, publications, and professional references should be provided. Candidates should provide their current address, telephone number, and email address. All candidates will receive careful consideration. Appointment will be made without regard to factors such as race, color, religion, national origin, sex, age, or disabilities. Candidates must be citizens of the United States and be able to devote approximately 100 days per year to Committee business, but may not be compensated for more than 130 calendar days. Resumes will be accepted until January 11, 2013.
Executive Office of the President, Office of Science and Technology Policy.
Notice of Public Meetings.
The National Nanotechnology Coordination Office (NNCO), on behalf of the Nanoscale Science, Engineering, and Technology (NSET) Subcommittee of the Committee on Technology, National Science and Technology Council (NSTC) and in collaboration with the European Commission, will hold the 2012 “EU–U.S.: Bridging NanoEHS Research Efforts” joint workshop on October 25–26, 2012 in Helsinki, Finland. The purpose of this workshop is to further promote and deepen the EU–U.S. collaboration on nanosafety research and to develop the Communities of Research (CoRs). The event is aimed at administrators, policy makers, decision makers, and scientists from the EU and the U.S.
NNCO and the European Commission will also host meetings for the CoRs on the topic of environmental, health, and safety issues related to nanomaterials between the publication date of this Notice and September 30, 2013. These CoRs will provide a platform for scientists from the U.S. and EU to develop a shared repertoire of protocols and methods to overcome research gaps and barriers. The co-chairs for each CoR will convene meetings and set meeting agendas with administrative support from the European Commission and the NNCO.
The CoRs directly address Goal 4.2 of the National Nanotechnology Initiative Strategic Plan: “Develop tools and procedures for * * * international outreach and engagement to assist stakeholders in developing best practices for communicating and managing risks.” However, the CoRs are not envisioned to provide any government agency with advice or recommendations.
The CoRs were proposed at the first U.S.-EU workshop on
• Exposure through the Life Cycle, with Material Characterization.
• Ecotoxicity Testing and Predictive Models, with Material Characterization.
• Predictive Modeling for Human Health, with Material Characterization.
• Databases and Ontologies.
• Risk Assessment.
• Risk Management and Control.
The CoRs will hold several Webinars and/or conference calls between the publication date of this Notice and September 30, 2013. The envisioned end date for the CoRs is September 30, 2013.
The workshop will be held on Thursday, October 25, 2012 from 9:00 a.m. until 5:30 p.m. and on Friday, October 26, 2012 from 9:00 a.m. until 4:00 p.m. CoR meetings will take place periodically between the publication date of this Notice and September 30, 2013. Meeting dates and call-in information will be posted on the
The workshop will be held at Finnish Institute of Occupational Health, Topeliuksenkatu 30, Helsinki, Finland. The CoRs will meet via teleconferences and Web meetings.
Those interested in presenting 3–5 minutes of public comments at the U.S.-EU workshop on
For information regarding this Notice, please contact Stacey Standridge at National Nanotechnology Coordination Office, by telephone (703–292–8103) or email (
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, October 11, 2012 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, October 11, 2012 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 11.5(c) to add a new order type, the NBBO Offset Peg Order, to the rule. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements
The Exchange proposes to add a new order type to Exchange Rule 11.5(c), the NBBO Offset Peg Order. While the
The NBBO Offset Peg Order would enable Users to submit buy and sell orders to the Exchange that are pegged to a designated percentage away from the National Best Bid (the “NBB”) and National Best Offer (the “NBO”, and together with the NBB, the “NBBO”), respectively, while providing them full control over order origination and order marking. This retention of control, in turn, would enable Market Makers to comply independently with the requirements of Regulation SHO
The Market Access Rule requires that any broker-dealer with market access, or that provides a customer or any other person with market access, must establish, document and maintain a system of risk management controls and supervisory procedures reasonably designed to manage the financial, regulatory and other risks of this business activity. These controls include financial risk management controls reasonably designed to prevent the entry of orders that exceed appropriate pre-set credit or capital thresholds in the aggregate for each customer and the broker-dealer itself, and to prevent the entry of erroneous orders. In addition, the Market Access Rule requires certain regulatory risk management controls that, among other things, prevent the entry of orders unless compliance with applicable regulatory requirements has been satisfied on a pre-order entry basis, and restrict access to trading systems and technology that provide market access to persons and accounts that have been pre-approved and authorized by the broker-dealer. These regulatory risk management controls also include measures designed to prevent the entry of orders for a broker-dealer, customer or other person if such person is restricted from trading those securities, and to assure that appropriate surveillance personnel receive immediate, post-trade execution reports that result from market access.
In addition to the Market Access Rule, broker-dealers have independent obligations that arise under Regulation SHO. Regulation SHO obligations generally include properly marking orders to sell as “long”, “short” or “short exempt”, obtaining a “locate” for short sale orders, closing out fail to deliver positions and, where applicable, complying with the short sale price test.
In an effort to simplify Members' compliance with the requirements of the Market Access Rule and Regulation SHO, the Exchange is proposing to adopt a new order type, the NBBO Offset Peg Order, and add it to Rule 11.5(c) as new subparagraph (15). An NBBO Offset Peg Order would be a one-sided limit order
As noted above, while use of the NBBO Offset Peg Order would not be limited to Market Makers, the Exchange believes that Market Makers would likely be the predominant, if not exclusive, users of the order type. Thus, the NBBO Offset Peg Order is designed such that its price would be automatically set and adjusted, both upon entry and at any time thereafter, in order to comply with the Exchange's Market Maker quotation requirements.
Specifically, upon entry and at any time the price of the order reached the “Defined Limit”,
In the event that pricing an NBBO Offset Peg Order at the Designated Percentage away from the then current NBB or NBO, or, if no NBB or NBO, to the Designated Percentage away from the last reported sale from the responsible single plan processor, would result in the order exceeding its limit price, the order would be cancelled or rejected.
In the event of an execution against an NBBO Offset Peg Order that reduced the size of the order below one round lot, a Member acting as a Market Maker would need to enter a new order, after performing the regulatory checks discussed above, to satisfy its obligations under Rule 11.21. A new timestamp would be created each time an NBBO Offset Peg Order was automatically adjusted.
Users utilizing the NBBO Offset Peg Order would have control over order origination, as required by the Market Access Rule, while also enabling them to satisfy their order marking and locate obligations prior to order entry, as required by Regulation SHO. Thus, Members would be in a position to comply with the Market Access Rule and Regulation SHO just as they would when placing any other order on the Exchange, while also enabling Members acting as Market Makers using coupled buy and sell NBBO Offset Peg Orders to satisfy their Exchange Market Making obligations.
The Exchange intends to implement the proposed rule change on or about November 19, 2012, and will notify its Members and other market participants in an information circular to be posted on the Exchange's Web site.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from its Members or other interested parties.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary,
All submissions should refer to File Number SR–EDGX–2012–44. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 23, 2012, The NASDAQ Stock Market LLC (“Exchange” or “NASDAQ”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider this proposed rule change, the issues raised in the comment letters that have been submitted in response to the proposed rule change, including comment letters submitted in response
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 7, 2012, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade Shares of the Fund pursuant to NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by FlexShares Trust (“Trust”), a statutory trust organized under the laws of Maryland and registered with the Commission as an open-end management investment company.
The Investment Adviser is affiliated with a broker-dealer and has implemented a “fire wall” with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the Fund's portfolio. If a sub-adviser that is also affiliated with a broker-dealer is hired for the Fund, such sub-adviser will implement a fire wall with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the portfolio. In the event (a) the Investment Adviser or any sub-adviser becomes newly affiliated with a broker-dealer, or (b) any new manager, adviser, or sub-adviser becomes affiliated with a broker-dealer, it will implement a fire wall with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the portfolio, and will be subject to procedures designed to prevent the use and dissemination of material, non-public information regarding such portfolio.
The Fund will not be an index fund. The Fund will be actively managed and will not seek to replicate the performance of a specified index.
The Fund will seek maximum current income consistent with the preservation of capital and liquidity. The Fund will seek to achieve its investment objective by investing under normal circumstances
The Fund will invest in debt securities that are, at the time of investment, rated within the top four rating categories by a Nationally Recognized Statistical Rating Organization (“NRSRO”) or of comparable quality as determined by the Investment Adviser.
The Fund may invest, without limitation, in fixed income instruments of foreign issuers in developed and emerging markets,
(1) It is either (a) classified by the World Bank in the lower middle or upper middle income designation for one of the past 3 years (
(2) The country's debt market is considered relatively accessible by foreign investors in terms of capital flow and settlement considerations; and
(3) The country has issued the equivalent of $5 billion in local currency sovereign debt.
The criteria used to evaluate whether a country is an “emerging market” will change from time to time based on economic and other events.
Foreign debt securities include direct investments in non-U.S. dollar-denominated debt securities traded primarily outside of the United States and dollar-denominated debt securities of foreign issuers. The Fund will invest in non-U.S. corporate bonds that the Investment Adviser deems to be sufficiently liquid at the time of investment.
The Fund may invest, without limitation, in mortgage- or asset-backed securities, other structured securities, including collateralized mortgage obligations (“CMOs”), and also including to-be-announced transactions (or “TBA Transactions”).
The Fund may invest in variable and floating rate instruments. Variable and floating rate instruments have interest rates that periodically are adjusted either at set intervals or that float at a margin tied to a specified index rate. These instruments include variable amount master demand notes, long-term variable and floating rate bonds where the Fund obtains at the time of purchase the right to put the bond back to the issuer or a third party at par at a specified date, and leveraged inverse floating rate instruments (“inverse floaters”). Some variable and floating rate instruments have interest rates that periodically are adjusted as a result of changes in inflation rates.
Because there is no active secondary market for certain variable and floating rate instruments, they may be more difficult to sell if the issuer defaults on its payment obligations or during periods when the Fund is not entitled to exercise its demand rights. In addition, variable and floating rate instruments are subject to changes in value based on changes in market interest rates or changes in the issuer's or guarantor's creditworthiness.
The Fund may borrow money and enter into reverse repurchase agreements in amounts not exceeding one-fourth of the value of its total assets (including the amount borrowed). To the extent consistent with its investment objective and strategies, the Fund may enter into repurchase agreements with financial institutions such as banks and broker-dealers that are deemed to be creditworthy by the Investment Adviser and may invest a portion of its assets in custodial receipts.
The Fund may engage in forward foreign currency transactions for hedging purposes in order to protect against uncertainty in the level of future foreign currency exchange rates, to facilitate local settlements, or to protect against currency exposure in connection
To the extent consistent with its investment policies, the Fund may hold up to 15% of its net assets in securities that are illiquid (calculated at the time of investment), including Rule 144A Securities and master demand notes. The aggregate value of all of the Fund's illiquid securities, Rule 144A Securities, master demand notes, fixed and variable rate loan participations and assignments, inverse floaters, and long-term variable and floating rate bonds where the Fund obtains at the time of purchase the right to put the bond back to the issuer or a third party at par at a specified date shall not exceed 15% of the Fund's total assets. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid securities.
The Fund may purchase and sell securities on a when-issued, delayed delivery, or forward commitment basis. The Fund also may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts (such as buy backs or mortgage dollar rolls).
The Fund may temporarily hold cash and cash-like instruments or invest in short-term obligations pending investment or to meet anticipated redemption requests. The Fund also may hold up to 100% of its total assets in cash or cash-like instruments or invest in short-term obligations as a temporary measure mainly designed to limit the Fund's losses in response to adverse market, economic, or other conditions. The Fund may not achieve its investment objective when it holds cash or cash-like instruments, or invests its assets in short-term obligations or otherwise makes temporary investments. The Fund also may miss investment opportunities and have a lower total return during these periods.
The Fund may not purchase or sell physical commodities unless acquired as a result of ownership of securities or other instruments.
The Fund may not concentrate its investments (
The Fund may invest in the securities of other investment companies. Such investments will be limited so that, as determined after a purchase is made, either: (a) not more than 3% of the total outstanding stock of such investment company will be owned by the Fund, the Trust as a whole, and its affiliated persons (as defined in the 1940 Act); or (b)(i) not more than 5% of the value of the total assets of the Fund will be invested in the securities of any one investment company, (ii) not more than 10% of the value of its total assets will be invested in the aggregate securities of investment companies as a group, and (iii) not more than 3% of the outstanding voting stock of any one investment company will be owned by the Fund. These limits will not apply to the investment of uninvested cash balances in shares of registered or unregistered money market funds whether affiliated or unaffiliated. The foregoing exemption, however, only applies to an unregistered money market fund that (i) limits its investments to those in which a money market fund may invest under Rule 2a–7 of the 1940 Act, and (ii) undertakes to comply with all the other provisions of Rule 2a–7.
Investments by the Fund in other investment companies, including exchange-traded funds (“ETFs”),
The Fund intends to qualify as a regulated investment company under Subchapter M of Subtitle A, Chapter 1, of the Internal Revenue Code.
The Fund will not invest in any non-U.S registered equity securities. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage. That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
Consistent with the Exemptive Order, the Fund will not invest in options contracts, futures contracts, or swap agreements.
The Exchange represents that the Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Investment Adviser will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Exchange Act,
Additional information regarding the Trust, Fund, Shares, Fund's investment strategies, risks, creation and redemption procedures, fees, portfolio holdings and disclosure policies, distributions and taxes, availability of information, trading rules and halts, and surveillance procedures, among other things, can be found in the Notice and/or the Registration Statement, as applicable.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures applicable to derivative products, which include Managed Fund Shares, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders (“ETP Holders”) in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (d) how information regarding the Portfolio Indicative Value is disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Exchange Act,
(6) The Fund will invest in debt securities that are, at the time of investment, rated within the top four rating categories by an NRSRO.
(7) The Fund will invest only in non-U.S. corporate bonds that the Investment Adviser deems to be sufficiently liquid at time of investment. Generally, a corporate bond must have $200 million (or an equivalent value if denominated in a currency other than U.S. dollars) or more par amount outstanding and significant par value traded to be considered as an eligible investment.
(8) The Fund will not invest: (a) More than 20% of its total assets in fixed income instruments of foreign issuers in emerging markets; (b) more than 10% of its total assets in non-agency mortgage- or asset-backed securities; (c) consistent with the Exemptive Order, in options contracts, futures contracts, or swap agreements; and (d) in any non-U.S. registered equity securities.
(9) The aggregate value of all of the Fund's illiquid securities, Rule 144A Securities, master demand notes, fixed and variable rate loan participations and assignments, inverse floaters, and long-term variable and floating rate bonds where the Fund obtains at the time of purchase the right to put the bond back to the issuer or a third party at par at a specified date shall not exceed 15% of the Fund's total assets.
(10) The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
(11) A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 2, 2012, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission initially received one comment letter, which opposed the proposed rule change.
The Commission initiated proceedings on July 19, 2012, to determine whether to approve or disapprove the proposed rule change.
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider the proposed rule change, the issues raised in the comment letters that have been submitted in response to the proposed rule change, including comment letters submitted in response to the Order Instituting Proceedings, and the Exchange's responses to such comments. The Commission also finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider the data that has been provided by the commenters to support their positions.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes a rule change to offer members the ability to pay a regulatory fine pursuant to an installment plan, under certain conditions. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
BX is proposing to amend Rule 8320 governing “Payment of Fines, Other Monetary Sanctions, or Costs; Summary Action for Failure to Pay” to offer members the ability to pay a regulatory fine pursuant to an installment plan, under certain conditions. In order for a member to be eligible to pay a regulatory fine via an installment plan, the fine under the applicable letter of acceptance, waiver, and consent (“AWC”)
After receipt of the AWC and down payment, an installment package, including a promissory note and payment schedule, will be mailed to the member. A sample promissory note and payment schedule are included in Exhibit 3 to this proposed rule change. The member must then submit an executed (signed and notarized) promissory note for the unpaid balance of the fine, along with its first installment payment. The term of the installment plan may not exceed four years after the execution of the AWC. The member may elect monthly or quarterly payments.
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes a rule change to offer members and member organizations the ability to pay a regulatory fine pursuant to an installment plan, under certain conditions. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Phlx is proposing to amend Rule 52 governing “Fees, Dues and Other Charges” to offer members and member organizations the ability to pay a regulatory fine pursuant to an installment plan, under certain conditions. In order for a member or member organization to be eligible to pay a regulatory fine via an installment plan, the fine under the applicable offer of settlement
After receipt of the offer of settlement and down payment, an installment package, including a promissory note and payment schedule, will be mailed to the member or member organization. A sample promissory note and payment schedule are included in Exhibit 3 to this proposed rule change. The member or member organization must then submit an executed (signed and notarized) promissory note for the unpaid balance of the fine, along with its first installment payment. The term of the installment plan may not exceed four years after the execution of the offer of settlement. The member or member organization may elect monthly or quarterly payments.
Phlx believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of proposed rule change is to update Schedule 502 of the ICC Rules in order to be consistent with the scheduled index series listings occurring on September 20, 2012 and September 27, 2012.
In its filing with the Commission, ICC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of proposed rule change is to update Schedule 502 of the ICC Rules in order to be consistent with the scheduled index series listings occurring on September 20, 2012 and September 27, 2012. The North American credit default swap indices scheduled to be listed (the “Scheduled Indices”) are: Investment Grade, Series 19, 5- and 10-year to be listed on September 20, 2012; Emerging Markets, Series 18, 5-year to be listed on September 20, 2012; and High Yield, Series 19, 5-year to be listed on September 27, 2012. The Scheduled Indices update does not require any changes to the body of the ICC Rules. Also, the Scheduled Indices update does not require any changes to the ICC risk management framework. The only change being submitted is the update to the Scheduled Indices in Schedule 502 of the ICC Rules.
ICC believes that the update to the three Scheduled Indices is consistent with the purposes and requirements of Section 17A of the Act
ICC does not believe the proposed rule change would have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–ICC–2012–15 and should be submitted on or before October 30, 2012.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 27, 2012, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider this proposed rule change, the issues raised in the comment letters that have been submitted in response to the proposed rule change, including comment letters submitted in response to the Order Instituting Proceedings, and the Exchange's responses to such comments.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 11.5(c) to add a new order type, the NBBO Offset Peg Order, to the rule. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements
The Exchange proposes to add a new order type to Exchange Rule 11.5(c), the NBBO Offset Peg Order. While the NBBO Offset Peg Order would be available for all Users,
The NBBO Offset Peg Order would enable Users to submit buy and sell orders to the Exchange that are pegged to a designated percentage away from the National Best Bid (the “NBB”) and National Best Offer (the “NBO”, and together with the NBB, the “NBBO”), respectively, while providing them full control over order origination and order marking. This retention of control, in turn, would enable Market Makers to comply independently with the requirements of Regulation SHO
The Market Access Rule requires that any broker-dealer with market access, or that provides a customer or any other person with market access, must establish, document and maintain a system of risk management controls and supervisory procedures reasonably designed to manage the financial, regulatory and other risks of this
In addition to the Market Access Rule, broker-dealers have independent obligations that arise under Regulation SHO. Regulation SHO obligations generally include properly marking orders to sell as “long”, “short” or “short exempt”, obtaining a “locate” for short sale orders, closing out fail to deliver positions and, where applicable, complying with the short sale price test.
In an effort to simplify Members' compliance with the requirements of the Market Access Rule and Regulation SHO, the Exchange is proposing to adopt a new order type, the NBBO Offset Peg Order, and add it to Rule 11.5(c) as new subparagraph (15). An NBBO Offset Peg Order would be a one-sided limit order
As noted above, while use of the NBBO Offset Peg Order would not be limited to Market Makers, the Exchange believes that Market Makers would likely be the predominant, if not exclusive, users of the order type. Thus, the NBBO Offset Peg Order is designed such that its price would be automatically set and adjusted, both upon entry and at any time thereafter, in order to comply with the Exchange's Market Maker quotation requirements.
Specifically, upon entry and at any time the price of the order reached the “Defined Limit”,
In the event that pricing an NBBO Offset Peg Order at the Designated Percentage away from the then current NBB or NBO, or, if no NBB or NBO, to the Designated Percentage away from the last reported sale from the responsible single plan processor, would result in the order exceeding its limit price, the order would be cancelled or rejected.
In the event of an execution against an NBBO Offset Peg Order that reduced the
Users utilizing the NBBO Offset Peg Order would have control over order origination, as required by the Market Access Rule, while also enabling them to satisfy their order marking and locate obligations prior to order entry, as required by Regulation SHO. Thus, Members would be in a position to comply with the Market Access Rule and Regulation SHO just as they would when placing any other order on the Exchange, while also enabling Members acting as Market Makers using coupled buy and sell NBBO Offset Peg Orders to satisfy their Exchange Market Making obligations.
The Exchange intends to implement the proposed rule change on or about November 19, 2012, and will notify its Members and other market participants in an information circular to be posted on the Exchange's Web site.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from its Members or other interested parties.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA–4078–DR), dated 08/22/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of Oklahoma, dated 08/22/2012 is hereby amended to expand the incident for this disaster to include the Noble Wildfire.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA–4078–DR), dated 08/22/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Oklahoma, dated 08/22/2012 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Washington (FEMA–4083–DR), dated 09/25/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 09/25/2012, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 13319B and for economic injury is 13320B.
U.S. Small Business Administration.
Notice of open Federal advisory committee meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the National Women's Business Council (NWBC). The meeting will be open to the public.
The meeting will be held on October 19, 2012 from approximately 9 a.m. to 12 p.m. EST.
The meeting will be held at the Indianapolis Motor Speedway, 4790 West 16th Street, Indianapolis, IN 46222.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the
The purpose of the meeting is to provide updates on the NWBC's 2012 research agenda and action items for fiscal year 2013 included but not limited to procurement, access to capital, access to markets, veteran, young and high-growth women entrepreneurs. The topics to be discussed will include 2012 projects and 2013 goals and research.
The meeting is open to the public, however, advance notice of attendance is requested. Anyone wishing to attend or make a presentation to the NWBC must either email their interest to
Those needing special accommodation in order to attend or participate in the meeting, please contact 202–205–3850 no later than October 12, 2012.
For more information, please visit our Web site at
Small Business Administration (SBA).
Notice of Revision of Privacy Act Systems of Records.
SBA is updating the Privacy Act Systems of Records for (i) the Loan System, SBA 21 (“SOR 21”) and (ii) the Suspension and Debarment Files, SBA 36 (“SOR 36”) to incorporate a comment received in response to the March 16, 2012 notice published in the
Written comments on the revisions to the SBA's SOR 21 and SOR 36 Systems of Records are due November 8, 2012. The changes to these Systems of Records are effective without further notice on November 23, 2012 unless comments are received that result in further revision. Based on SBA's review of comments received, if any, SBA will publish a notice if it determines to make changes to the system notices.
Written comments on the revisions to the SBA's SOR 21 and SOR 36 Systems of Records should be directed to Ingrid Ripley, Program Analyst, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416. When submitting comments please identify whether comments are related to SOR 21 or SOR 36.
Ingrid Ripley, Program Analyst, (202) 205–7538.
SBA is amending its Privacy Act System of Records, notice of which was previously published at 74 FR 14890 (April 1, 2009) and 77 FR 15835–01 (March 16, 2012), to update System 21 (Loan System) and System 36 (Suspension and Debarment Files) to incorporate a comment received from the public, to update a GSA system referenced within the notice, and to add two new routine uses to SOR 21.
SBA is updating the routine use provisions of its Privacy Act Systems of Records, Loan System, SBA 21 (“SOR 21”) to incorporate a comment received in response to the March 16, 2012 notice published in the
SBA is also revising SOR 21 to add a new routine use paragraph “o” to provide for the transfer of delinquent debt information for publication in a government-wide computer information system(s). SBA and its authorized lending institutions would be able to search this system to prescreen applicants for loans or loans guaranteed by the Federal government to ascertain if the applicant is delinquent in paying a debt owed to or guaranteed by the Government. This information will allow participating Federal agencies and approved private lenders acting on the Government's behalf to better monitor their credit programs and to reduce the credit extended to individuals with outstanding delinquencies on debts owed to SBA and other Federal agencies.
Finally, SBA is revising SOR 21 to add a new routine use paragraph “p” to allow transfer of loan information to Federal or state agencies for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a state in a state-administered, federally funded program. Government agencies, including but not limited to SBA, would be able to search this system. This transfer of information is authorized pursuant to the Improper Payments Elimination and Recovery Act of 2010, Executive Order 13520, and Executive Memorandum dated June 18, 2010, which required agencies to review existing databases known collectively as the “Do Not Pay List” before the release of any Federal funds. The purpose of the “Do Not Pay List” is to help prevent, reduce and stop improper payments from being made, and to identify and mitigate, fraud, waste and abuse.
SBA is updating the System of Records for Suspension and Debarment Files, SBA 36, (“SOR 36”), to incorporate a comment received in response to the March 16, 2012 notice published in the
Loan System—SBA 21
These records and information in the records may be used, disclosed, or referred:
“m—To GSA and the public for publication of Loan Agent suspensions, revocations and exclusions under 13 CFR Part 103 in the Excluded Parties List System (or successor system) and on the SBA Web site consistent with Executive Order 12549 and other applicable law.”
“o—To the Department of Housing and Urban Development or other Federal agency for publication of delinquent debt information of persons delinquent in paying a debt owed to or guaranteed by the SBA on a system to allow searches by participating Government agencies and approved private lenders, consistent with applicable law.”
“p—to (a) a Federal or state agency, its employees, agents (including contractors of its agents), approved private lenders acting on the Government's behalf, or contractors, or (b) a fiscal or financial agent designated by the Department of the Treasury, including employees, agents or contractors of such agent, for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a state in a state-administered, Federally funded program.”
—Suspension and Debarment Files—SBA 36
These records and information in the records may be used, disclosed or referred:
“o. To GSA and the public for publication of suspensions, debarments, other enforcement actions, and exclusions by SBA in the Excluded Parties List System (or successor system) and on the SBA Web site pursuant to Executive Order 12549 and other applicable law.”
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
By virtue of the authority vested in me by the Chief Financial Officer Act, 31 U.S.C. 901 et seq., and by the designation from the President, dated June 12, 2012, and to the extent authorized by law, I hereby delegate to the Comptroller the functions and authorities provided for in 31 U.S.C. 902(a)(2), (3), (5) and (6), with the access and authorities provided for in 31 U.S.C. 902(b).
Any reference in the CFO Act to “head of the agency” shall be interpreted, in the context of this delegation of authority only, as a reference to the Chief Financial Officer. Any act, executive order, regulation or
Notwithstanding this delegation of authority, the Chief Financial Officer may at any time exercise any authority or function delegated by this delegation of authority.
This delegation of authority shall terminate upon the appointment and entry upon duty of a subsequently-appointed Chief Financial Officer.
This document shall be published in the
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 29, 2012.
You may send comments identified by Docket Number FAA–2012–0604 using any of the following methods:
•
•
•
•
Frances Shaver, (202) 267–4059, Office of Rulemaking, ARM–207, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, or Katie Haley, (202) 493–5708, Office of Rulemaking, ARM–204, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before October 29, 2012.
You may send comments identified by Docket Number FAA–2012–0113 using any of the following methods:
•
•
•
•
Tyneka Thomas ARM–105, (202) 267–7626, FAA, Office of Rulemaking, 800 Independence Ave SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by November 8, 2012.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA–2012–0081.
Chris Allen, 202–366–4104, Office of Highway Policy Information, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, between 6:30 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
The reporting requirements of the Recovery Act are covered in Sections 1201 and 1512. Section 1201 (c)(1) stipulates that “notwithstanding any other provision of law each grant recipient shall submit to the covered agency (FHWA) from which they received funding periodic reports on the use of the funds appropriated in this Act for covered programs. Such reports shall be collected and compiled by the covered agency (FHWA) and transmitted to Congress. Covered agencies (FHWA) may develop such reports on behalf of grant recipients (States) to ensure the accuracy and consistency of such reports.”
Section 1512 of the Recovery Act requires “any entity that receives recovery funds directly from the Federal Government (including recovery funds received through grant, loan, or contract) other than an individual,” including States, to provide regular “Recipient Reports.”
As the recipients or grantees for the majority of the Recovery Act funds, States and Federal Land Management Agencies (FLMA) are by statute responsible for reporting to FHWA on the projects, use of Recovery Act funds, and jobs supported. States and FLMA that receive recovery fund apportionments directly from the Federal government are responsible for reporting to FHWA, and are also responsible for reporting quarterly to the
States and FLMA will be responsible for providing the data that are not currently available at the national level. Not every data element required to be reported by the Recovery Act needs to be specifically collected. To the maximum extent possible, FHWA will utilize existing data programs to meet the Recovery Act reporting requirements. For example, for the requirement to report aggregate expenditures of State funds, FHWA will use existing reports submitted by States and data collected in the Financial Management Information System (FMIS). While the reporting obligations in the Recovery Act are only applicable to the grant recipients, the States and FLMA may need to obtain certain information from their contractors, consultants, and other funding recipients in order to provide the FHWA with all of the required information.
Additional information on the American Recovery and Reinvestment Act of 2009 is available at
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
Pursuant to 40 CFR 1508.22 and 43 TAC § 2.5(e)(2), the FHWA, Texas Department of Transportation (TxDOT), and Central Texas Regional Mobility Authority (Mobility Authority) are issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for a transportation project in Travis County, Texas. The proposed project would improve US 290 from State Loop 1 (SL1 [Mopac]) to Ranch-to-Market Road (RM) 1826, in Travis County, Texas, a distance of approximately 3.6 miles. The EIS will also include improvements to SH 71 from Silvermine Drive to US 290 in Travis County, a distance of approximately 1.2 miles.
Mr. Salvador Deocampo, District Engineer, District A, Federal Highway Administration, Texas Division, 300 East 8th Street, Room 826, Austin, Texas, 78701. Phone: 512–536–5950.
Public Scoping meetings will be held in fall 2012 and winter 2013 to receive oral and written comments on environmental concerns that should be addressed in the EIS. The public scoping meetings will be held at dates, times and locations to be published in general circulation newspapers in the project area. Comments concerning the scope of the analysis should be received in writing within 30 days following the date of the last scoping meeting to receive full consideration in the development of alternatives.
The FHWA in cooperation with TxDOT and the Mobility Authority will prepare an EIS for the proposed improvement of US 290 from State Loop 1 (SL1 [Mopac]) to Ranch-to-Market Road (RM) 1826, in Travis County, Texas, a distance of approximately 3.6 miles. The EIS will also include improvements to SH 71 from Silvermine Drive to US 290 in Travis County, a distance of approximately 1.2 miles. Proposed improvements were originally considered in a Final Environmental Impact Statement (FEIS) covering improvements to SH 71/US 290 from RM 1826 to Farm-to-Market (FM) 973. A Record of Decision (ROD) was issued by FHWA on August 22, 1988. The mid-section of the original project limits, between Joe Tanner Lane and Riverside Drive, has been constructed. Since the issuance of the ROD, changes in adjacent land use, State and Federal listing of the Barton Springs salamander as endangered, changes in funding mechanisms, and public input have resulted in changes in the proposed design concept. A new EIS will be completed to evaluate potential impacts from the proposed improvements. The proposed project limits of the US 290 EIS would extend beyond the limits of the original FEIS to allow for a logical terminus and transition back to existing US 290 at Circle Drive and along SH 71 at Silvermine Drive.
The project is listed in the Capital Area Metropolitan Planning Organization (CAMPO) 2035 Regional Transportation Plan, as amended, as a six-lane tolled freeway from Circle Drive to Joe Tanner Lane and as tolled connector bridges from SH 71 to US 290 W. The proposed action is also included in the CAMPO's fiscal year 2011–2014 Transportation Improvement Program (TIP) as an added capacity, tolled facility and tolled connector bridges from SH 71. The need for the proposed project stems from corridor congestion causing unreliable traffic operations within the US 290/SH 71 corridor. TxDOT and the Mobility Authority have identified the following issues that the project would address: safety concerns along the corridor, roadway congestion which has been caused by steady population growth in the Austin metropolitan area, system mobility and connectivity, time delay and level of service (LOS; currently at LOS F—unacceptable congestion) within the corridor, and reliable routes for transit and emergency vehicles within the corridor.
In order to address the identified needs and objectives, the purpose of the proposed project is to improve mobility and operational efficiency, facilitate long-term congestion management in the corridor by accommodating the movement of people and goods for multiple modes of travel, and improve safety and emergency response within the corridor. A reasonable number of alignment alternatives will be identified and evaluated in the EIS, as well as the No-build Alternative, based on input from federal, state, and local agencies, as well as private organizations and concerned citizens. Alternative designs and funding alternatives will include tolling options or new managed lanes. In addition, environmental stewardship and sustainability strategies will be developed to address those problems which are not transportation related and may include improved service quality and quality of access to goods and services, safety, improved air quality, noise reduction, improved water quality, protection of habitat and open space, historic preservation, reduced carbon emissions, increased social equity, economic development, and a satisfying quality of life, plus local goals consistent with the overall project purpose and need.
Impacts caused by the construction and operation of the proposed improvements would vary depending on the selection of a build alternative. The EIS will evaluate potential impacts from construction and operation of the proposed roadway including, but not limited to, the following: impacts to residences and businesses, including potential relocation; impacts to parkland; transportation impacts (construction detours, construction traffic, and mobility improvement); air and noise impacts from construction equipment and operation of the roadway; social and economic impacts, including impacts to minority and low-income residences; impacts to historic cultural resources; endangered and threatened species and impacts to
Public involvement is a critical component of the project development process and will occur throughout the planning and study phases. Opportunities for public involvement would exist during the scoping process, public meetings and a public hearing. A Public and Agency Coordination Plan will be provided in accordance with 23 U.S. Code Section 139 (23 U.S.C. 139), to facilitate and document the lead agencies, structure interaction with the public and other agencies, and to inform the public and other agencies of how the coordination will be accomplished. The Public and Agency Coordination Plan will promote early and continuous involvement from stakeholders, agencies, and the public as well as describe the proposed project, the roles of the agencies and the public, the project purpose and need, schedule, level of detail for alternatives analysis, and the proposed process for coordination and communication.
Letters describing the proposed action and soliciting comments will be sent to the appropriate Federal, State, and local agencies, and private organizations and citizens who have previously expressed or are known to have interest in this proposal. To ensure that the full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to FHWA at the address above.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Requirements (ICRs) abstracted below have been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICRs describe the nature of the information collections and their expected burdens. The
Comments must be submitted on or before November 8, 2012.
Ms. Janet Wylie, Office of Planning and Administration, RPD–3, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 20, Washington, DC 20590 (telephone: (202) 493–6292), or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493–6132). (These telephone numbers are not toll-free.).
The Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, Section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501–3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On August 6, 2012, FRA published a 60-day notice in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30 day notice is published. 44 U.S.C. 3507(b)–(c); 5 CFR 1320.12(d);
The summaries below describe the nature of the information collection requirements (ICRs) and the expected burden. The revised requirements are being submitted for clearance by OMB as required by the PRA.
In 2009, President Obama announced a new vision to address the nation's transportation challenges. He called for a collaborative effort among the Federal government, States, railroads, and other stakeholders to help transform America's transportation system. The President's vision seeks to create an efficient high-speed passenger rail system to connect inner-city communities across America.
Developing a comprehensive high-speed intercity passenger rail network requires a long-term commitment at both the Federal and State levels. The President has jump-started the process with $2 billion provided by the Department of Transportation (DOT) Appropriations Act of 2010 (FY10 Appropriations), $8 billion provided by the American Recovery and Reinvestment Act (ARRA), $90 million provided by the DOT Appropriations Act of 2009 (FY09 Appropriations), and approximately $1.8 million remaining funds from the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2008 (FY08 Appropriations). Additional or
The Federal Railroad Administration (FRA) allocates funds to applicants with plans or programs that align with the President's key strategic transportation goals: creating safe and efficient transportation choices, building a foundation for economic competitiveness, promoting energy efficiency and environmental quality, and supporting interconnected livable communities. Grants are being administered for the following types of projects:
• Service Development Programs—Aimed at new high-speed rail corridor services or substantial upgrades to existing corridor services. Grants are intended to fund a set of inter-related projects that constitute a phase (or geographic section) of a long-range corridor plan.
• Individual Projects—Aimed at discrete capital projects that will result in service benefits or other tangible improvements on a corridor. These projects include completion of preliminary engineering (PE), National Environmental Policy Act (NEPA) documentation, final design (FD), and construction, which can include equipment procurements to provide improved service and modernized fleets throughout the country.
• Planning Projects—Aimed at helping to establish a pipeline of future construction projects and corridor development programs by completing Service Development Plans and service-level environmental analysis for corridors that are at an earlier stage of the development process, as well as State Rail Plans.
In essence, the application process is grounded on three key principles: (1) Promoting collaboration and shared responsibility among the Federal Government and States, groups of States within corridor regions, and governments, railroads and other private entities; (2) managing, rather than eliminating, risk through program management structure, controls and procedures that permit prudent but effective investments; and (3) ensuring early success while building a sustainable program to meet near-term economic recovery goals while developing public consensus for a long-term program. FRA has issued interim program guidance as well as detailed instructions to clearly explain the application process.
The applications include the standard items, such as the SF 424, all ARRA-relevant forms, and other necessary and relevant technical documents that are project-specific and voluntary.
In order to determine eligibility for funds, FRA must solicit applications and collect information from parties interested in obtaining and utilizing these funds for eligible projects.
Following allocation of funds to applicants, FRA must collect information from recipients in the form of various required reports in order to effectively monitor and track the progress of all funded projects. This process consists of:
This collection of information is necessary in order to comply with the funding agreements outlined in the Notice of Grant Agreement and, for ARRA recipients, satisfy legal obligations identified in Section 1501(c).
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the
44 U.S.C. 3501–3520.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning the Voluntary Customer Surveys To Implement E.O. 12862 Coordinated by
Written comments should be received on or before December 10, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Elaine Christophe at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–3179, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before December 10, 2012 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at (202) 622–3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
Currently, the IRS is seeking comments concerning the following forms, and reporting and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
United States Mint, Department of the Treasury.
Notice.
Because of the recent increase in the market price of silver, the United States Mint is announcing a new price of $59.95 for the 2012 Annual Uncirculated Dollar Coin Set. This set contains the following uncirculated coins—four Presidential $1 Coins, one Native American $1 Coin and one American Eagle Silver Coin.
B.B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street, NW; Washington, DC 20220; or call 202–354–7500.
31 U.S.C. 5111, 5112 & 9701.
The Department of Veterans Affairs (VA) gives notice under Public Law 92–463 (Federal Advisory Committee Act)
The purpose of the Group is to advise the Secretary of Veterans Affairs and the Under Secretary for Health on the care and treatment of disabled Veterans, and other matters pertinent to the Department's Veterans Health Administration (VHA).
The agenda for the meeting will include discussions on the Accountable Care Organization Innovations in Healthcare; Innovations in Care Delivery in VHA; the Camp Lejeune Legislation; and the Impact of the Affordable Care Act.
No time will be allocated for receiving oral presentations from the public. However, members of the public may submit written statements for review by the Committee to Ms. Juanita Leslie, Department of Veterans Affairs, Office of Administrative Operations (10B), Veterans Health Administration, 810 Vermont Avenue NW., Washington, DC 20420, or by email at
By Direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is issuing a final Federal Implementation Plan (FIP) to address regional haze in the State of Hawaii. This FIP addresses the requirements of the Clean Air Act (CAA or “the Act”) and EPA's rules concerning reasonable progress towards the national goal of preventing any future and remedying any existing man-made impairment of visibility in mandatory Class I areas in the State of Hawaii.
The FIP establishes an emissions cap of 3,550 tons of sulfur dioxide (SO
EPA worked closely with the State of Hawaii in the development of this plan and the State has agreed to incorporate the control requirements into the relevant permits. The State has indicated that it intends to take full responsibility for the development of future Regional Haze plans.
This rule is effective on November 8, 2012.
EPA has established docket number EPA–R09–OAR–2012–0345 for this action. Generally, documents in the docket are available electronically at
Gregory Nudd, Air Planning Office (AIR–2), U.S. Environmental Protection Agency Region 9, 415–947–4107,
Throughout this document, wherever “we,” “us,” or “our,” is used, we mean the United States Environmental Protection Agency (EPA).
For purposes of this document, we are giving meaning to certain words or initials as follows:
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On May 29, 2012, the EPA proposed a FIP to address regional haze in the State of Hawaii. We proposed to determine that this FIP would meet the requirements of the CAA and EPA's rules concerning reasonable progress towards the national goal of preventing any future and remedying any existing man-made impairment of visibility in mandatory Class I areas.
In our Notice of Proposed Rulemaking, we proposed to find that there was only one source in Hawaii that was subject to Best Available Retrofit Technology (BART) requirements, the Kanoelehua Hill Generating Station (Hill) on the Island of Hawaii (the Big Island). We also proposed to find that the current level of pollution control at Hill was consistent with BART and no additional controls would be required to meet the BART requirement. In addition, the EPA proposed to find that sufficient emissions reductions were expected on Maui to make reasonable progress during the first implementation period of 2001–2018. We also proposed to find that additional SO
EPA held two public hearings in Hawaii on May 31 and June 1, 2012 to accept oral testimony and written comments on the proposal. The first meeting was held at Maui College in Kahului on the Island of Maui. Twenty people provided oral comments and four provided written comments at this hearing. The second hearing was at the Waiakea High School in Hilo on the Big Island. Four people provided oral comments at this hearing and one provided written comments. Verbatim transcripts of the public hearings are available in the public docket for this rulemaking, Docket ID No. EPA–R09–OAR–2012–0345, which can be accessed through the
We also received an additional 18 written comments through email, postal mail and the rulemaking docket. These comments are also available in the public docket for this rulemaking, Docket ID No. EPA–R09–OAR–2012–0345, which can be accessed through the
EPA received 18 written comments on the proposal. Commenting organizations include: Friends of Haleakala National Park (FHNP), Alexander and Baldwin, the parent company of Hawaii Commercial and Sugar (HC&S), Maui Electric Company (MECO), Hawaii Electric Light Company (HELCO), National Park Service (NPS), Maui Tomorrow Foundation (Maui Tomorrow), Law office of Marc Chytilo on behalf of Preserve Pepe'ekeo Health and Environment and private citizens (Chytilo), Robert W. Parsons on behalf of the Office of the Mayor of Maui (Parsons) and Earthjustice on behalf of the National Parks Conservation Association, Sierra Club, and Blue Planet Foundation (Earthjustice). Seven private citizens also submitted comments on the proposal.
Two of these commenters (HELCO, MECO) stated that EPA's exclusion of volcanic emissions from the determination of natural visibility conditions is arbitrary and capricious. Another of the commenters (Earthjustice) stated that EPA's methods for incorporating volcanic emissions into its analysis are internally inconsistent and arbitrary. These commenters asserted that while emissions from the volcano vary from year to year, there is no reasonable basis for EPA to completely exclude them from the estimate of natural conditions.
According to two of the commenters (HELCO, MECO), EPA has expressed the opinion that Kilauea could stop erupting at any time and that natural visibility conditions in 2064 might not include emissions from the volcano. In the view of the commenters, this does not justify EPA's use of the default conditions developed by the Western Regional Air Partnership (WRAP) for western states in the continental United States to determine requirements for Hawaii; rather, it displays a fundamental misunderstanding of Kilauea's emissions profile. Based on a report attached to the comments, the commenters asserted that significant SO
These commenters (HELCO, MECO) stated that by including emissions from Kilauea in baseline visibility conditions but excluding them from natural visibility conditions, EPA has created an “apples to oranges comparison” that artificially inflates the amount of manmade emissions reductions necessary in Hawaii. As a result, the commenters asserted, the proposed FIP would establish reasonable progress goals that would be impossible to achieve through the reduction of
Another commenter (Earthjustice) stated that the goal of the haze program is to eliminate visibility impairment “from manmade air pollution” [citing 42 U.S.C. 7491(a)(1)]. According to the commenter, failing to include the volcano in natural conditions distorts the analysis of the impacts from human sources and the corresponding BART controls and reasonable progress goals to achieve natural visibility conditions. The commenter asserted that based on this “skewed analysis,” EPA summarily eliminated any controls for NO
The fourth commenter (HC&S) pointed out that under EPA's methodology, the URP incorporates reductions in visibility impairment that are sufficient to offset both the portion of baseline impairment that comes from anthropogenic emissions and the portion that is caused by the volcano. The commenter believes that to make a more accurate assessment of the reduction in emissions from anthropogenic sources necessary to achieve natural visibility conditions, emissions from Kilauea either need to be included in, or excluded from, both the estimate of baseline visibility conditions and the estimate of natural visibility conditions. The commenter recommended that EPA adopt the Hawaii DOH's proposed method to adjust the baseline visibility impairment to account for the impacts of volcano emissions as well as for the impacts of Asian dust. According to the commenter, under this approach, the URP target for 2018 would be 0.32 deciviews (dv), which is only slightly greater than what would be achieved through the proposed FIP.
In establishing RPGs, the states and EPA must “consider” both the URP and the emission reduction measures needed to achieve the URP.
1. Establish baseline and natural visibility conditions.
2. Determine the URP (i.e., a straight line between baseline visibility in 2000–2004 for the worst 20 percent days and projected natural conditions for the worst 20 percent days in 2064).
3. Identify and analyze the measures aimed at achieving the URP.
a. Identify the key pollutants and sources and/or source categories that are contributing to visibility impairment at each Class I area.
b. Identify the control measures and associated emission reductions that are expected to result from compliance with existing rules and other available measures for the sources and source categories that contribute significantly to visibility impairment.
c. Determine what additional control measures would be reasonable based on the statutory factors and other relevant factors for the sources and/or source categories identified.
d. Estimate through the use of air quality models the improvement in visibility that would result from implementation of the control measures found to be reasonable and compare this to the URP.
4. Establish an RPG.
In this case, the commenters' concerns relate primarily to how EPA performed step 1 of this analysis. Specifically, the commenters object to EPA's inclusion of volcanic emissions in the baseline and exclusion of volcanic emissions in our estimate of natural conditions. EPA acknowledges the commenters' concerns, but does not agree that our approach is arbitrary or unjustified in this case. Rather, we have followed the statutory and regulatory requirements for Reasonable Progress analyses, while also accounting for unique circumstances in Hawaii that severely limit the utility of the URP as an analytical tool for setting RPGs for the state's Class I areas.
Pursuant to 40 CFR 51.308(d)(2), baseline visibility conditions must be calculated using actual monitoring data from 2000–2004. Therefore, the baseline conditions for Class I areas in Hawaii necessarily include volcanic emissions. It is difficult to include volcanic emissions as part of natural background visibility in 2064 because of the extreme variability in volcanic emissions from year to year. In this case, a 2064 projection would be little better than a guess. Therefore, in estimating natural conditions for purposes of this first planning period, we have not attempted to forecast the future contribution of the volcano to natural background visibility. Even if we could quantitatively estimate “natural” volcanic emissions and air quality effects in 2064 with any accuracy, the URP would be of very limited value in setting RPGs for Hawaii.
As explained in EPA's Reasonable Progress Guidance, the URP is intended to serve as a gauge against which to measure the improvement in visibility conditions that is projected to result
However, given the dominance of volcanic emissions on the worst 20 percent days in Hawaii, it may be appropriate for future plans to focus on other days when the proportion of anthropogenic contribution to visibility impairment is larger. We expect that the State of Hawaii will develop future regional haze plans, consistent with the CAA and EPA's implementing regulations. We plan to work with the State of Hawaii on those future plans and we will consider different approaches to gauging reasonable progress, and different approaches to determining the URP.
We would consider a refined estimate of natural conditions at these Class I areas if the State of Hawaii were to propose such a change as part of the next Regional Haze plan for Hawaii. Any such estimate would need to be consistent with our guidance on this subject.
Two commenters similarly asserted that fugitive dust from the sugarcane fields affects the haze in Haleakala NP and is killing Maui's coral reefs. The commenter indicated that after harvest, the cane fields are left bare and the loose topsoil is picked up by the trade winds and carried across the island, coating everything in its path and eventually settling on and killing the coral reefs south of Maui.
EPA shares the commenters' concerns about the impact of dust emissions on public health, the loss of topsoil and possible impacts to water quality and marine life. However, in the context of this rulemaking, EPA does not consider it reasonable to require additional pollution control without clear evidence that the dust is causing or contributing to haze at the Class I area. Further analysis of the source of this coarse
Three commenters (HC&S, HELCO, and MECO) agreed with EPA's analysis to determine which sources should be subject to BART requirements. Their comments are summarized in the following paragraphs.
Two of the commenters (HELCO, MECO) noted that CAA section 169A(b)(2)(A) requires the relevant regulatory agency to review a state's BART eligible sources and determine whether they emit “any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in [a Class I] area.” These commenters cited the BART Guidelines (70 FR 39109, July 6, 2005) to add that if a source does not meet this threshold, it may be exempt from further BART review. Based on these principles, the commenters believe that EPA's analysis of which sources in Hawaii should be subject to BART is sound and consistent with the BART Guidelines, and they urged EPA to retain it for the final FIP.
These two commenters stated that the BART Guidelines provide regulatory agencies with three options for making a “cause or contribute” finding and that EPA reasonably chose to use an “individual source attribution approach” and a threshold of 0.5 dv in this case. According to the commenters, the BART Guidelines explain that the appropriate contribution threshold depends on the number and proximity of sources affecting a Class I area, and a threshold lower than 0.5 dv is justified where there are a large number of BART-eligible sources within the state and in proximity to a Class I area. The commenters added that in Hawaii there are few BART-eligible sources and they are not concentrated near a single Class I area. On this basis, one of the commenters (MECO) explicitly expressed agreement that 0.5 dv is the appropriate threshold.
These two commenters went on to note that, consistent with the BART Guidelines, EPA applied the 0.5 dv contribution threshold to the results of computer modeling that was used to predict visibility impacts from each BART-eligible source in Hawaii, with the result that six of the eight BART-eligible sources fell below the 0.5 dv contribution threshold.
The third commenter (HC&S) also agreed with the proposed threshold (0.5 dv) used to assess whether the impact of a single source contributes to visibility impairment at the Hawaiian Class I areas. This commenter pointed out that of the six sources in Hawaii exempted from BART because their modeled impact is below 0.5 dv, none has a modeled impact of as much as half of this threshold level. The commenter also stated that the combined impact from all six sources is 0.715 dv at Haleakala NP, which is lower than the level (1.0 dv) at which the BART Guidelines consider a single source to “cause” visibility impairment. The commenter added that while this combined impact is somewhat higher than the proposed 0.5 dv contribution threshold, the BART Guidelines explicitly caution that visibility effects of multiple sources should not be aggregated and their collective effects compared against the contribution threshold, because this would inappropriately create a “contribution to contribution” test. The commenter concluded that it is therefore reasonable to conclude that these six sources do not cause or contribute to visibility impairment at Haleakala NP. The commenter also asserted that since the combined visibility impact of these six sources at the Hawaii Volcanoes NP totals 0.35 dv, it is reasonable to conclude that these sources do not cause or contribute to visibility impairment at Hawaii Volcanoes NP. The commenter noted that setting the contribution threshold at 0.5 dv for sources subject to BART will capture those BART-eligible sources responsible for more than half of the visibility impacts at Haleakala NP and nearly 90 percent of the visibility impacts at Hawaii Volcanoes NP while still excluding other sources with very small impacts. The commenter believes that given the relatively small number of BART-eligible sources potentially impacting Class I areas in Hawaii and the magnitude of both the individual sources' impacts and the combined impact from all sources proposed to be exempt from BART, the proposed 0.5 dv threshold for determining whether a single source contributes to visibility impairment is wholly consistent with the BART Guidelines and is therefore an appropriate threshold for use in the Hawaii FIP.
Two commenters (FHNP, Parsons) disagreed with some aspects of EPA's analysis to determine which sources should be subject to BART requirements.
One commenter (FHNP) suggested that the MECO Kahului and HECO Kahe facilities should not be exempted from BART analysis. The commenter noted that EPA used a modeled increase of 0.5 dv at the Haleakala IMPROVE monitoring site (HALE) to identify candidates for BART analysis, and that the measured concentrations of pollutants taken at the Haleakala Crater monitoring site (HACR) are approximately half of those measured at HALE. According to the commenter, it is expected that the point sources analyzed in this report would contribute similar densities of non-anthropologic elements at both the HALE and the HACR sites (with the exception of some smoke sources) and that, hence, a point source modeled to produce a 0.25 dv change at HALE would be expected to produce an approximate 0.5 dv change at HACR in the Class I area. The commenter pointed out that the MECO Kahului site and the HECO Kahe site were modeled to produce changes of 0.232 dv and 0.221 dv, respectively, at HALE. The commenter believes that extrapolating these contributions to the HACR site suggests that these sources are very close to contributing 0.5 dv in the Class I area. The commenter concluded that since actions recommended in the report are projected to produce less than the target rate of progress, the MECO Kahului and HECO Kahe sites should not be exempted from BART analysis.
The second commenter (Parsons) objected to EPA's omission of the Kahului facility from BART requirements. The commenter stated that air emissions from MECO's Maalaea
As an initial matter, we would like to clarify that the modeling upon which we have based our subject-to-BART determinations did not use either the Haleakala (HALE) IMPROVE monitoring site or the Haleakala Crater (HACR) site as a receptor.
To the extent that the commenter is arguing that the subject-to-BART modeling should have used background conditions for HACR rather than HALE, we also disagree. Consistent with the BART Guidelines, the subject-to-BART modeling for Hawaii was performed against natural visibility conditions.
With respect to measured
We also disagree with the commenter that the URP is relevant to whether Kahului and Kahe are subject to BART. Under the Regional Haze Rule (RHR), the determination of which sources are subject-to-BART is a separate analysis from the calculation of the URP and the setting of RPGs.
Regarding the comments from Parsons, EPA agrees that the electric power plants Maalaea and Kahului are relatively large sources of pollution. However, as noted above, the modeled 98th percentile visibility impact of the BART-eligible Kahului source is 0.23 dv, less than one-half of the 0.5 dv subject-to-BART threshold. Due to the age of its equipment, the Maalaea power plant does not have BART-eligible units and therefore is not subject-to-BART.
EPA disagrees that we represented at the hearing in Maui that the Kahului Power Plant would no longer be operating in 2018. That assertion is not supported by the transcript.
One commenter (HC&S) stated that the small contribution to visibility impairment from the Puunene Mill warrants a determination that the facility should not be subject to BART. While conceding that it was reasonable to use maximum actual 24-hour emissions to model worst-case visibility impacts, the commenter indicated that typical visibility impacts from the Puunene Mill are likely to be lower than the modeled results. The commenter noted that even so, modeling results for both coal and bagasse firing showed that the impact of the facility was well below the 0.5 dv contribution threshold at both Haleakala NP and Hawaii Volcanoes NP, at both the maximum 24-hour 98th percentile impact and the highest modeled impact. According to the commenter, the highest modeled impact for the facility (i.e., during coal firing) was less than half the contribution threshold at Haleakala NP and less than 20 percent of the threshold at Hawaii Volcanoes NP. The commenter added that modeling of the combined impacts of both BART-eligible (Boiler 3) and Reasonable Progress-eligible (Boilers 1
In contrast, one commenter (Parsons) believes that with regard to the Hawaii Regional Haze FIP and for public health concerns, air emissions at HC&S's Puunene Mill should be subjected to BART determinations, Maximum Achievable Control Technology (MACT) Hammer standards and both continuous opacity monitoring systems (COMS) and continuous emissions monitoring systems (CEMS) guidelines. The commenter stated that the Puunene Mill is the second worst polluter in Hawaii with regard to air emissions. The commenter indicated that Boilers 1 and 2 at the facility predate the Act, and thus have been exempt from those standards for decades. The commenter also contended that EPA's “revised MACT Hammer provisions” have not been applied to these units because HC&S and sugar growers in Florida and Texas submitted a report replacing these emission limits with their own subcategory of bagasse-fired boilers. The commenter added that HC&S combusts 100,000 tons of coal annually without emission standards that apply to other coal-burning facilities. The commenter also stated that Boiler 3 at the facility has not been held to Federal standards required for COMS and CEMS or regulatory oversight by the Hawaii DOH.
Two other commenters also stated that EPA should include all of the HC&S smoke stacks in its review. In particular, the commenter asked that EPA review and closely monitor the electric power production emissions on the Puunene Mill.
The commenter indicates that he believes the Mill should be subject to Federal guidelines for CEMS and COMS. We are confident that the methods used to calculate worst-case emissions are appropriate and conservative. Therefore, the absence of continuous monitors does not weaken the analysis.
The commenter also indicates that he believes the Puunene Mill should be subject to MACT controls. The applicability of MACT is outside the scope of this rulemaking.
One commenter (Chytilo) objected to the exclusion of the Hu Honua Bioenergy Facility and the Tradewinds Veneer Mill and Cogeneration Facility's electric generating EGUs from the proposed FIP. The commenter argued that these facilities should be subjected to BART controls and emissions limits. The commenter stated that even though neither source was operating during the baseline period, the emissions from each source are significant and will interfere with progress towards national visibility objectives.
The commenter also asserted that EPA improperly exempted these sources from controls, reporting and reasonable further progress based on what the commenter believes is the irrelevant and incorrect belief that each source is entirely biofueled. The commenter stated that emissions controls will be less successful for these facilities because steady state operations are more difficult to achieve and the operators contemplate diurnal fuel source changes and other operational shifts daily. The commenter added that biofueled sources still cause visibility impairment, and alleged that the FIP rulemaking offers no explanation for why biofueled sources should be exempted from haze controls. The commenter indicated that the two facilities are permitted to burn wood waste which, according to the commenter, is a variable fuel that actually produces increased emissions and should be subject to enhanced controls. The commenter believes that haze objectives cannot be met if these sources are exempted.
The commenter made the following additional points related to the Hu Honua facility:
• The emissions calculations for the Hu Honua facility are questionable. The commenter expressed agreement with EPA's comments on the facility's Covered Source Permit (Hawaii's term for a title V permit), which the commenter characterized as saying that unrealistic emissions factors were used and actual plant emissions are likely to be considerably higher.
• The facility's permit allows the use of conventional diesel fuel during startup and off-peak periods, so any exemption for biofuels is not warranted.
• Sulfur oxides (SO
We note that the commenter's general concern about emissions from new large facilities possibly interfering with visibility goals is a common consideration in air quality planning and is not limited to these two facilities. Such emissions are regulated in large part under the CAA's Prevention of
One commenter (Earthjustice) stated that EPA's proposal to exempt the Hill facility from any BART controls neither meets the requirements of the BART program, nor promotes necessary visibility improvements at Hawaii's Class I areas. The commenter pointed out that even though EPA has stated that this facility is by far the largest source of anthropogenic SO
In contrast, another commenter (HELCO) agreed that EPA appropriately determined that BART controls are not justified for the Hill facility. The commenter noted that EPA's analysis of the five statutory factors that must be considered in establishing BART was based largely on an analysis performed by a consultant for HELCO (“the Trinity BART report”
One commenter (HELCO) agreed with EPA's determination that the Hill facility should not install NO
One commenter (Earthjustice) stated that EPA proposed no control as BART for NO
The commenter also stated that EPA summarily dismisses post-combustion controls such as selective catalytic combustion (SCR) because “they were not found to be cost effective” in the Trinity BART report (citing 77 FR 31706). However, according to the commenter, that report showed that the cost effectiveness of SCR for Hill falls within the range established in EPA and state BART determinations. The commenter quoted the Trinity BART report as including SCR costs of $2,600 and $2,200/ton for the units at the Hill facility, while EPA's proposal for BART at the Four Corners Power Plant considered cost estimates of $4,887 to $6,170/ton to be cost-effective (citing 75 FR 64227, October 19, 2010) and states have established thresholds for cost-effectiveness such as $7,300 (Oregon), $7,000 to $10,000 (Wisconsin), $5,946 to $7,398 (New Mexico), and $5,500 (New York).
The commenter believes that, in any event, EPA has no basis for eliminating BART controls without engaging in the statutorily mandated five-factor BART analysis. According to the commenter, EPA simply waived any analysis, and any pollution reduction benefit, based on speculation. The commenter alleged that proper inquiry would confirm, for example, that LNB would prove much more effective at controlling NO
In particular, EPA considered the unique atmospheric conditions on the Big Island, which call into question the reliability of the benefits predicted by the air quality model. The air quality model used by Trinity compared the impact of the NO
As a result, we find that the costs of LNB are not justified by the visibility benefit that would actually result from installation of controls due to the unique atmospheric conditions on the Big Island. We also find that substantially more expensive post-combustion controls, such as SCR, were not justified for the same reason. Although the costs for those post-combustion controls could be reasonable in some contexts, they are not reasonable for Hill, given the low visibility improvements that would result from installation of such controls at this time. Nonetheless, as anthropogenic contributions to visibility impairment decrease over time, further reductions in NO
One commenter (HELCO) agreed with EPA that the Hill Plant should not be required to install SO
The first commenter (HELCO) stated that there are no cost-effective control options available for the Hill facility. The commenter noted that the BART Guidelines state that the majority of BART-eligible units could meet the presumptive limits at a cost of $400 to $2,000/ton of SO
This commenter also agreed with EPA's statement that imposing fuel switching at Hill as BART would “unduly increas[e] electricity rates in Hawaii” (citing 77 FR 31707). The commenter stated that fuel switching would increase both the cost of electricity produced by the Hill facility and the cost of electricity that HELCO purchases from independent power producers (IPPs) because most of the contracts with the IPPs are tied to HELCO's “avoided cost” of producing electricity; thus, as HELCO's fuel costs increase for Hill, the price that most of the IPPs receive for the renewable electricity they provide increases. The commenter pointed out that the BART Guidelines recognize that there may be circumstances that justify taking into consideration the conditions of the plant and the economic effects of requiring the use of a given control technology, including “effects on product prices, the market share, and profitability of the source” (citing 70 FR 39130, July 6, 2005). The commenter asserted that given that the electricity rates in Hawaii already are three times higher than the national average, the increased cost of electricity alone is a reasonable basis for determining that BART for the Hill Plant is no additional controls.
The second commenter (Earthjustice) quoted the proposal preamble as saying that the pollution control of switching to 1 percent sulfur fuel oil would produce a 0.5 dv benefit, which EPA acknowledges is “a significant improvement in visibility” (citing 77 FR 31707). In addition, the commenter believes that this benefit is understated because EPA derived the 0.5 dv figure from the Trinity BART report which started from a baseline impact of Hill of 1.56 dv (citing 77 FR 31705), but EPA cited a higher baseline impact of 2.334 dv from the state's consultants in finding Hill subject to BART in the first instance (citing 77 FR 31704, 31705).
This commenter also stated that the cumulative benefit of BART controls must be analyzed, contending that EPA and states have in numerous cases recognized and included such cumulative visibility benefits in BART determinations. The commenter pointed out that the Trinity BART report's 0.5 dv figure includes only the visibility impact on Volcanoes NP; it does not include the visibility impact and benefit to Haleakala NP. The commenter indicated that EPA cited an impact of 0.808 dv at Haleakala NP in finding Hill subject to BART, while the Trinity BART report cited a figure of 0.44 dv (citing 77 FR 31705 and EPA's TSD, p. 50, footnote 45). The commenter stressed that in either case, this impact is not negligible, yet EPA has failed to calculate the visibility benefits to Haleakala NP. In sum, the commenter believes that the “significant
The commenter also contended that EPA's cost-effectiveness figure of $5,587/ton is inflated because EPA quotes the cost of the 0.5 percent sulfur oil burned on Oahu as an upper limit, but then assumes it to be the cost of 1 percent sulfur oil (citing the TSD, pp. 52–53). The commenter believes that in all likelihood, 1 percent sulfur oil would cost less than the 0.5 percent sulfur oil upper limit. The commenter added that, conversely, if EPA uses the cost of 0.5 percent sulfur oil, it also should use the pollution reduction benefit of the same.
According to the commenter EPA did not determine its figure of $5,587/ton to be unreasonable as a general matter, but instead indicated that it does not believe the benefits justify the costs “in this case” (citing 77 FR 31707). The commenter alleged that the only grounds EPA provided for this conclusion are the following: “We are particularly concerned about unduly increasing electricity rates in Hawaii, given that these rates are already three times the national average according to the Energy Information Agency” (citing 77 FR 31707). The commenter asserted that this rationale falls short for the following reasons:
• EPA's reliance on electricity rate increases contradicts its previous rejection of this rationale as a metric for cost effectiveness. In its BART determination for the San Juan Generating Station in New Mexico, for example, EPA maintained that “we do not consider a potential increase in electricity rates to be the most appropriate type of analysis for considering the costs of compliance in a BART determination” (citing 76 FR 52400, August 22, 2011). Rather, “cost effectiveness analyses are based on the cost to the owner to generate electricity, or the busbar cost, not market retail rates” (citing 76 FR 52398).
• EPA calculated that the fuel change would bump up retail electricity rates by only 1 percent, which seems negligible on its face. EPA does not explain how 1 percent amounts to an undue increase in rates, or provide any method to gauge an undue increase other than its assertion. This amounts to an arbitrary conclusion that any control having an effect on rates is unreasonable.
• In proposing to eliminate BART based on electricity rate impacts, EPA is straying into policy decisions that are more appropriately left to the Public Utility Commission (PUC) of the State of Hawaii's authority and expertise, or the regulated utility and market. The PUC is best positioned to decide how Hill can be most cost-effectively deployed in relation to all other available resource options if EPA fulfills its duty of controlling Hill's air pollution and having Hill internalize the cost. By negating BART based on generalized rate impact concerns, however, EPA undermines both its own function of controlling pollution and the PUC's regulatory function of managing utility resource costs and rates.
• It is not true that requiring Hill to adopt pollution controls will necessarily increase electric rates. Several large wind plants on Hawaii Island are routinely curtailed, especially at night. (The commenter appended many pages of HELCO's reports of such curtailments.) Increasing the cost of Hill's operation would not necessarily result in Hill's generation remaining constant and costs proportionately rising. Rather, it may lead the utility to reduce Hill's use to save on the increased fuel costs and instead receive more wind energy, which has a zero fuel cost (as well as zero pollution impact). In that case, an actual reduction in costs and rates may result (along with an even greater pollution reduction and visibility benefit than EPA calculated).
• EPA's proposal would not help to avoid unduly increasing electric rates, as much as it would distort the relative costs of polluting and clean energy resources and unduly disadvantage the latter. EPA recognizes the goals of the state's “Clean Energy Bill” (i.e., the state's renewable portfolio standard [RPS] and energy efficiency portfolio standard), although it does not make clear how this contributes to its analysis. The RPS allows a waiver of its requirements, however, based on “[i]nability to acquire sufficient cost-effective renewable electrical energy,” Haw. Rev. Stat. § 269–92(d) (2011 Supp.), which highlights the need for polluting generation like Hill to incorporate the costs of cost-effective pollution controls to enable accurate comparisons with “cost-effective” renewable energy. In this regard, EPA's proposal not only forfeits cost-effective pollution control now, but also works against the State's cited clean energy goals overall by exempting Hill from such costs and thus artificially subsidizing it relative to clean generation.
The commenter (Earthjustice) concluded by asserting that at minimum, EPA's proposal and rationale fail to consider the overall benefits of adopting the cost-effective option of switching to low-sulfur fuel, including a potential reduction in electric rates. The commenter believes that this highlights the analytical and practical flaws in EPA's use of utility rates as a justification to avoid its responsibility of requiring cost-effective pollution controls.
Regarding the “cumulative benefit” of BART controls, EPA notes that the RHR and the BART Guidelines do not prescribe a particular approach to calculating or considering visibility benefits across multiple Class I areas. Summing the total visibility benefits over multiple Class I areas is a useful metric that can further inform the BART determination. However, in this instance, the baseline impacts of Hill at the only other affected Class I area, Haleakala NP, were less than 0.5 dv, and the projected improvement of switching to 1 percent sulfur fuel was 0.2 dv.
With respect to the costs-of-compliance factor for Hill, EPA has primarily taken into account the average cost effectiveness of controls, as recommended by the BART Guidelines.
In this case, we estimated the average cost effectiveness of limiting the sulfur content of the fuel oil burned at Hill to 1 percent, based on reasonable assumptions concerning fuel costs in Hawaii. As explained in Section VI.D.2 of the TSD, since data for the continental United States would not reflect transportation costs to Hawaii, EPA determined that it was appropriate to use fuel market data for the State of Hawaii. Currently, the power plants on Oahu burn oil that is no more than 0.5 percent sulfur by weight, while the power plants on Maui and the Big Island (including Hill) burn oil that is no more than 2 percent sulfur by weight. In addition, the 0.5 percent fuel oil burned on Oahu has significantly different mechanical properties than the fuel burned on the Big Island.
In the absence of any reliable publicly available data on the cost of 1 percent sulfur fuel oil in the State of Hawaii, we determined that it was appropriate to use the price of the Oahu 0.5 percent oil as an upper limit to the cost of 1 percent sulfur fuel oil. In other words, we assumed that, if 1 percent sulfur fuel oil were available on Oahu, it would cost the same or less than the 0.5 percent sulfur fuel burned on Oahu. The six-year (2006–2011) average cost differential between 0.5 percent fuel oil used on Oahu and the 2 percent fuel oil used on Maui and the Big Island is 0.190 $/gal, so we assumed that 1 percent sulfur fuel oil will, on average, cost 0.190 $/gal more than the 2 percent sulfur fuel oil currently being burned. We recognize that this is a conservative assumption, but find it to be reasonable, in light of the lack of reliable, publicly available market data for 1 percent sulfur fuel oil in Hawaii.
Based on this and other reasonable assumptions, we estimated that the average cost effectiveness of limiting the sulfur content of the fuel oil burned at Hill to 1 percent would be approximately $5,587/ton. We have concluded that $5,587/ton is too expensive to justify the projected visibility benefit of approximately 0.5–0.8 dv at Hawaii Volcanoes NP and 0.2 dv at Haleakala NP.
In addition to average cost effectiveness, EPA also took into account the potential impact of controls on electricity rates on the Big Island. Contrary to the commenter's assertion, consideration of electricity rates is not impermissible as part of a BART determination. The BART Guidelines provide that:
There may be unusual circumstances that justify taking into consideration the conditions of the plant and the economic effects of requiring the use of a given control technology. These effects would include effects on product prices, the market share, and profitability of the source. Where there are such unusual circumstances that are judged to affect plant operations, you may take into consideration the conditions of the plant and the economic effects of requiring the use of a control technology. Where these effects are judged to have a severe impact on plant operations you may consider them in the selection process, but you may wish to provide an economic analysis that demonstrates, in sufficient detail for public review, the specific economic effects, parameters, and reasoning.
EPA has determined that the unique energy situation in Hawaii (island-specific power grid, no availability of natural gas, high electric rates) constitutes an unusual circumstance, and accordingly, has considered the potential economic effects of requiring lower sulfur fuel as BART. In doing so, EPA is not “straying into policy decisions that are more appropriately left to the [PUC] * * * or the regulated utility and market.” Rather, EPA is exercising its discretion to consider unusual economic circumstances as part of its BART analysis. EPA agrees that the “PUC is best positioned to decide how Hill can be most cost-effectively deployed in relation to all other available resource options” and our BART determination does not constrain the PUC's ability to exercise this authority in any way.
EPA's consideration of the potential impact on electricity rates on Hawaii does not contradict previous EPA's BART determinations. With respect to EPA's BART determination for Public Service Company of New Mexico's (PNM) San Juan Generation Station (SJGS), the commenter's quotation of EPA's responses to comments is misleading. While EPA did not calculate potential increases in electricity rates associated with BART for SJGS, we noted that “our cost estimate, being about
We also note that EPA has taken into account economic effects as part of its BART determinations for other power plants with unusual circumstances. For
Finally, we acknowledge that additional factors could influence the ratepayer impacts of requiring lower sulfur fuel. As noted by Earthjustice, increased fuel costs at Hill could result in the increased use of other types of generation. At the same time, the cost of electricity that HELCO purchases from IPPs could also increase due to increases in HELCO's “avoided cost” of producing electricity. These factors are outside of the scope of our analysis, but we note that it is not clear whether the overall effect of switching to alternative sources of generation would be to further increase costs or to mitigate the impact to ratepayers. As such, our estimate of ratepayer impacts is far from certain. Therefore, while we have considered these impacts as part of our analysis, we do not rely upon them specifically as part of our final BART determination.
In sum, taking into account the five BART factors, and particularly the costs of control and expected visibility improvement, we conclude that BART for Hill is no additional controls.
One commenter (Earthjustice) objected to the fact that EPA limited its emissions inventories only to Maui and the Big Island in isolation. According to the commenter, EPA supported this approach by saying that “trade winds tend to transport pollution from Oahu away from the Class I areas” (citing 77 FR 31708). The commenter pointed out that the “Kona” winds often blow in the opposite directions, sometimes for as long as a week at a time, and asserted that general meteorological tendencies do not justify EPA summarily exempting all pollution sources from Oahu.
The commenter also quoted EPA as saying that modeling “indicates that even very large sources on Oahu have relatively small visibility impacts on Haleakala” (citing 77 FR 31708). The commenter stated that these visibility impacts are understated. According to the commenter, EPA's BART Guidelines recommend a minimum of three years of meteorological modeling for such analysis, while in this case, only one year of data were available. The commenter indicated that in other cases where only one year of modeling was conducted, it was established that the highest result, and not the 98th percentile result, should be used, and that in this case the highest result would have provided a visibility impact for two large plants on Oahu (Kahe and Waiau) of 1.28 and 0.57 dv at Haleakala NP, respectively, subjecting those plants to BART.
EPA's BART Guidelines do not specify a minimum number of years of meteorological modeling for subject-to-BART analyses, but EPA agrees with the commenter that it is generally appropriate to use three to five years of meteorological data for such analyses. For Hawaii, the subject-to-BART modeling was performed using the best available meteorological modeling available at the time, which for Hawaii was one year of meteorological modeling.
One commenter (Earthjustice) indicated that EPA should not have eliminated controls for NO
In contrast, two other commenters (HC&S, MECO) agreed with the proposal that sources on Maui and the Big Island should not be required to install NO
One commenter (NPS) believes that the proposed SO
Another commenter (Earthjustice) stated that the proposed SO
This commenter added that while the proposed cap serves as a minimal “backstop” against increased pollution, it does not fulfill the legal mandate of progress toward eliminating anthropogenic visibility impairment. The commenter stated that EPA must, first, calculate a meaningful URP that is unskewed by volcano conditions and second, require a rate of reasonable progress that is no less than the URP and reflects NO
The Hawaii 2009 Clean Energy Omnibus Bill (Act 155 (09), HB1464, signed June 25, 2009, [hereinafter “Clean Energy Bill”]) sets standards for renewable energy and energy conservation which would tend to reduce emissions at Hill, Shipman and Puna. However, it is unclear how those standards will be met and what new generation will be on line by January 1, 2018. The analysis of the bill provided by EPA in the proposal was intended to give the reader a qualitative understanding of the uncertainty in existing 2018 emission projections for these plants. It is up to the State of Hawaii to determine how the Clean Energy Bill is implemented and it is quite possible that Hill, Shipman and Puna will continue to operate at a similar capacity in 2018 as they do now. In light of this uncertainty, EPA finds it is reasonable to set a cap that could be met entirely by conversion to 1 percent fuel oil at the targeted plants, even if these plants did not have to reduce emissions under the Clean Energy Bill.
We also find that no additional reductions in anthropogenic SO
Finally, we do not agree that EPA must or should set RPGs for Hawaii that provide for a rate of improvement equivalent to or faster than the URP. As explained in Section II.A.1 above, the URP does not set a mandatory target for emissions reductions and is unhelpful in setting RPGs for Hawaii, given the unpredictability of volcanic emissions.
One commenter (HELCO) does not agree that a cap is required to meet reasonable progress goals. The commenters asserted that the costs and non-air quality and energy impacts of achieving SO
The commenter asserted that EPA has significantly underestimated the costs of switching to 1 percent sulfur fuel at the Hill, Puna, and Shipman Plants, noting that EPA estimated that the proposed emissions cap will cost $5,500/ton of SO
In addition, the commenter asserted that the visibility improvements anticipated by EPA do not justify the costs associated with complying with the proposed cap. The commenter made the following points in support of this assertion:
• EPA's proposal is based on modeling showing that Hill and Puna may be causing or contributing to impairment at Haleakala NP and that Shipman may be contributing to visibility impairment at Hawaii Volcanoes NP, using the same conservative assumptions used for MECO's Kahului Plant on Maui (citing 77 FR 31711). For Kahului, EPA's modeling was “based on conservative assumptions that are unlikely to occur during normal operations” (citing 77 FR 31709). Such tenuous connections to visibility impacts should not be the basis for imposing significant costs on HELCO's ratepayers.
• The proposed cap cannot be justified based on the “slight improvement” in projected visibility for 2018 at Volcanoes NP (0.18 dv) and Haleakala NP (0.29 dv) (citing 77 FR 31713). These levels are far less than either the level necessary for a perceptible improvement in visibility or the level of improvement EPA estimated in the BART analysis for the Hill Plant (citing 77 FR 31707).
• There is no reasonable basis for EPA's determination that a control cost of $5,500/ton of SO
• The high control costs for fuel switching are excessive for an aesthetic program such as Regional Haze. These costs far exceed the cost thresholds EPA recently applied in the Cross-State Air
The commenter went on to assert that the proposed emissions cap is not necessary to meet reasonable progress goals because of the high likelihood that SO
Finally, the commenter stated the understanding that EPA believes anthropogenic controls are necessary because Kilauea could stop erupting at any time, leaving all resulting visibility impairment from anthropogenic emissions that must be addressed. As discussed earlier, the commenter believes that even if Kilauea stopped erupting tomorrow, SO
In this regard, the commenter's selective quotation from EPA's Reasonable Progress Guidance is misleading. The Guidance notes that:
One important factor to keep in mind when establishing a RPG is that you cannot adopt a RPG that represents less visibility improvement than is expected to result
Read in context, it is clear that the discussion in the Guidance of state and local measures refers only to measures resulting from implementation of other CAA requirements (i.e., federally enforceable requirements promulgated by EPA or submitted by the State and approved by EPA into the applicable SIP). Hawaii has not submitted the measures contained in the Clean Energy Bill for approval into the applicable SIP. Therefore, these are not federally enforceable and, in promulgating a Regional Haze FIP, we cannot rely on these measures to assure that reasonable progress is made during the first planning period. In addition, we note that the Clean Energy Bill is not intended to address regional haze and does not specifically target those sources found to cause or contribute to visibility impairment in Hawaii's Class I areas. While implementation of the Clean Energy Bill
With regard to the costs of compliance, EPA recognizes that there is a great deal of uncertainty in projecting the future costs of petroleum products. The EPA-estimated cost of $5,587/ton is conservative, and was presented as an upper bound on what the costs could be in order to inform as best as possible both EPA's decision making and public comment. Because it is a conservative estimate that likely does not represent the true cost of the cap, we believe it would not be appropriate to use this cost estimate as a benchmark for BART or reasonable progress decisions on other sources in Hawaii or other states. EPA is unable to describe our specific disagreements with the details of HELCO's cost analysis because the company claimed that analysis as confidential business information (CBI).
Finally, HELCO misstates EPA's position regarding the need to control anthropogenic SO
One commenter (HELCO) stated that in spite of disagreeing about the reductions necessary to meet reasonable progress goals, the commenter appreciates the flexibility that an emissions cap provides and is prepared to accept a cap on SO
The commenter's primary concern is that the company be able to operate the five units subject to the proposed cap as much as necessary in the event of concurrent forced outages of a significant duration at multiple units within its system; this concern arises from historic events involving the IPPs that provide almost 90 megawatts of power to the commenter's system. In such a situation under the proposed 12-month cap, the commenter might find itself faced with two unacceptable options—violate the cap to maintain grid reliability or allow rolling blackouts. The commenter indicated that a 24-month cap would provide sufficient flexibility to ensure reliability without incurring CAA penalties.
The commenter added that a 24-month cap would diffuse the potential increase in electricity rates that may occur if multiple overlapping forced outages occurred under a 12-month cap, necessitating increased generation with higher-cost diesel-fired units. A 24-month cap would allow the commenter to operate its most cost-effective units as needed during an event and then offset the period of higher emissions during the remainder of the compliance period.
The commenter also stated that if EPA does not establish a 24-month cap, it is critical that EPA create an exemption to the 12-month cap in the event of concurrent forced outages of significant duration at multiple units in the system. Because its system is isolated, the commenter does not have the option of purchasing replacement power and must be able to operate its units as needed to maintain system reliability.
Finally, the commenter requested that if a 12-month cap is established, EPA confirm that compliance must first be demonstrated on December 31, 2018, rather than January 31, 2018. The commenter indicated that the difference is extremely important for planning and implementing compliance measures. The commenter is concerned that the proposed FIP is not clear on this matter [citing proposed 40 CFR 52.633(d)(4) and 77 FR 31718].
EPA confirms that HELCO would need to first demonstrate compliance with the cap on December 31, 2018. The rule language has been modified to clarify this issue.
One commenter stated that EPA's proposed SO
To address this issue, the commenter suggested a “second order” limit that is tied to the amount of volcanic emissions. As explained by the commenter, the limit would consist of a constant limit that would not affect the visibility from the volcano should volcanic emissions stop (i.e., the current amount of emissions EPA considers appropriate should volcanic emissions stop), plus a variable amount that would be some fraction of emissions from the volcano (e.g., 2 percent of the volcanic emissions, an amount that would be undetectable given the volcanic emission variation and clearly would not impact visibility). The commenter believes such a limit would provide “breathing room” for HELCO and price relief for its customers, while at the same time meeting EPA's mandate to limit emissions to values that will not significantly affect visibility in national parks and not adding to the public perception that EPA is working against the citizens of this country.
One commenter stated that EPA is mistaken if it thinks that it is going to raise taxes or rates in Hawaii over what the commenter termed “some ignorant climate change haze nonsense.”
One commenter (HC&S) disagreed with the EPA's projections that point source emissions of SO
Although supporting the EPA's conclusion that the Kahului facility should not be subject to controls, one commenter (MECO) disagreed that a reasonable progress analysis was warranted for the Kahului facility. According to the commenter, the EPA's finding that prevailing winds should transport Kahului's emissions away from Haleakala NP (citing 77 FR 31709) is a sufficient basis for the EPA to make a determination that controls are not required at Kahului; and no additional analysis should be necessary. The commenter stated that the visibility modeling upon which the EPA based its decision to conduct the reasonable progress analysis was based on conservative assumptions and unlikely to occur in normal operations (citing 77 FR 31709), and that Kahului's actual contribution to visibility impairment at Haleakala NP is likely considerably less and may not even be in the range of perceptibility. For this reason, the commenter believes that the EPA should have determined that Kahului should not be subject to reasonable progress requirements during this planning period.
One commenter (HC&S) concurred with the EPA's analysis showing that existing requirements under the Act will result in net reductions of anthropogenic emissions of SO
One commenter (NPS) recommended that the EPA establish an SO
Eight commenters expressed concern over emissions from agricultural burning in the sugarcane fields of Maui. Four of these commenters (Earthjustice, FHNP, Maui Tomorrow, Parsons) specifically questioned EPA's conclusions that there is no evidence of agricultural burning contributing to haze at Class I areas and/or that no further controls on agricultural burning are reasonable at this time (77 FR 31715, May 29, 2012). In contrast, one commenter (HC&S) concurred with EPA's findings.
One commenter (Earthjustice) indicated that the community's direct experience and testimony have provided evidence that agricultural burning contributes to haze at Class I areas, specifically that smoke plumes from agricultural burning impair visibility within Haleakala NP when meteorological conditions are not optimal and that the smoke directly impairs the views of park visitors of the panoramic vistas of the island, coastlines, and ocean from the park, which is an integral part of the park experience. Given the serious community concerns, the commenter urged EPA to undertake a full reasonable progress analysis for this pollution source and adopt a plan incorporating best practices for controlling emissions.
Another commenter (Parsons) stated that on many days, his view of Haleakala NP from Wailuku is obscured by a cloud of cane smoke through the central valley of Maui, and that views from Haleakala NP would certainly be impacted likewise. The commenter expressed disappointment that EPA has done little to address environmental and health concerns over the ongoing practice of open burning of sugar cane despite considerable public outcry.
One commenter (FHNP) indicated that a significant portion of the visitor experience of Haleakala NP is the enjoyment of views from within the park to places outside of the park. The commenter stated that it is the nature of human perception to be acutely aware of changes in scenery that are not “natural” even when the events are short lived or spatially limited. The commenter believes that such events, particularly agricultural burning in the cane fields, may not be adequately captured by EPA's analysis and methodology. According to the commenter, these agricultural burning events have a significant negative impact on the view from Haleakala NP toward the West Maui Mountains and other surrounding areas. The commenter added that it is intuitively obvious that burning such large quantities of vegetation in close proximity to a Class I area will have some impact on the viewing quality in and from that Class I area, even though the analysis showed no direct correlation.
Another commenter (Maui Tomorrow) stated that cane field burning produces billowing clouds laden with toxins and fine particulates, which can blot out the sky and the natural vistas, and cause or contribute to a range of severe respiratory and cardiovascular illness. While recognizing that the major contributor to visibility impairment in Haleakala NP is volcanic emissions, the commenter quoted the NPS as saying “sugar cane processing facilities and field burning * * * can affect air quality and visibility” in Haleakala NP. The commenter noted that Hawaii has “no smoke management plan as such” (citing 77 FR 31715, May 29, 2012) and contended that cane field burning is among the largest anthropogenic sources of nitrogen dioxide, SO
This commenter also stated that work published by a National Oceanic and Atmospheric Administration (NOAA) researcher that EPA cites in its TSD indicates that “Haleakala NP has greater impacts” from smoke as compared to Hawaii Volcanoes NP (citing TSD quotations of M. Pitchford). According to the commenter, that study notes that, based on data from the Haleakala monitoring station, “about half of worst-case days are associated” with factors other than volcanic emissions, including smoke, and that recommendations for follow-on work include examination of the smoke factor with respect to burning (e.g., agricultural) events. The commenter concluded by stating that EPA's proposed determination to not restrict cane field burning on Maui under the Regional Haze FIP is not reasonable and urging EPA to reconsider its position in light of the available evidence.
Another commenter (HC&S) noted that agricultural burning in Hawaii is regulated under a permit program, and widespread and persistent haze conditions are used as a criterion for establishment of a “no-burn” period by the Hawaii DOH. According to the commenter, “no-burn” periods established by the DOH are most likely to occur on days when volcanic smog from the volcano is present on the island, and therefore the potential for visibility impacts at Haleakala NP from agricultural burning should be lowest on the worst visibility days. The commenter indicated that under its agricultural burning permit, HC&S operates an extensive network of weather stations in and around the plantation that provide real-time data both to burn managers and to a meteorological consultant who prepares daily micro-forecasts of anticipated weather conditions, expected smoke dispersion, and optimum times and locations for burning. On occasions when existing air quality or expected smoke dispersion have been judged to be unsuitable for burning, HC&S has elected not to burn even when a “no-burn” period has not been established by the Hawaii DOH.
This commenter added that agricultural burning at HC&S is conducted in a manner largely consistent with the Tier 2 Smoke Management Program (SMP) recommended by the U.S. Department of Agriculture's Agricultural Air Quality Task Force (AAQTF) in its Air Quality Policy on Agricultural Burning. According to the commenter, the AAQTF policy allows the use of fire as an accepted management practice, consistent with good science, to maintain agricultural production while protecting public health and welfare by mitigating the impacts of air pollution emissions on air quality and visibility, and the Tier 2 SMP is designed for areas where agricultural burning contributes to particulate matter NAAQS violations or visibility impairment in Class I Federal areas—neither of which is the case on Maui. On this basis, the commenter disagreed with the statement
The commenter also pointed out that the proposal indicated that by far the biggest contributor to visibility impairment in Hawaiian Class I areas is SO
Noting that it has been postulated that elemental and organic carbon levels measured at the HALE site may be indicative of visibility impacts from agricultural burning, the same commenter asserted that the DOH's Haleakala National Park Visibility Assessment did not identify a significant correlation between measurements at this site and sugarcane burns, and suggested that this site may be impacted by small nearby emission sources rather than, or in addition to, agricultural burning. The commenter also stated that while organic carbon may also originate in part from agricultural burning, recent monitoring at HACR site has shown low contributions to visibility impairment from both organic and elemental carbon, and even at the HALE site (outside of the park) the contribution of elemental and organic carbon sources to visibility impairment is relatively low (and only a portion of this contribution is attributable to agricultural burning). On this basis, the commenter concluded that efforts to reduce visibility impacts of organic carbon from agricultural burning would appear to be unwarranted.
Two of the commenters (Earthjustice, Parsons) suggested that EPA install additional air quality monitors to assess the impacts from sugar cane burning. See section II.A.11. of this document for more on this topic.
With respect to the visibility impacts of agricultural burning, we reaffirm that there is no evidence that smoke from the burns is causing visibility impairment in the park. If smoke from the burns were transporting up to the park, the HACR monitor (inside the park, close to the park entrance) would measure significant levels of black carbon along with significant levels of organic compounds when the sugar cane fields were burning. But there are no significant levels of organic compounds and black carbon at the HACR IMPROVE monitor in the park on those days when burning took place. There were significant levels of these pollutants measured at HALE (outside the park and down the mountain, closer to the isthmus where the cane is grown) on particular days, but those pollutants were not found in significant levels at HACR for those same days.
Regarding Maui Now's reference to the comments by Marc Pitchford, we note that Dr. Pitchford found that Haleakala NP has comparatively more impact from all non-volcano factors, including smoke, than Hawaii Volcanoes NP.
The regional haze plan is designed to improve visibility within the park itself. Smoke outside of the park would certainly impact the views from the park, but, as explained below, views outside of the park are not covered under the regional haze program.
While not relevant to this rulemaking, EPA agrees with the commenters that additional monitoring of smoke impacts and evaluating its impact on the public would be helpful. We are working with Hawaii DOH to identify funding to install a new PM
One commenter (Maui Tomorrow) noted that the preamble to the proposed FIP cites sections II.A, II.B, and III.B of the TSD in support of EPA's assertion that there is “no evidence of agricultural burning contributing to haze at Class I areas” (citing 77 FR 31715, footnote 75, May 29, 2012). The commenter stated that section II.B is germane only to Hawaii Volcanoes NP, not to Haleakala NP. The commenter also contended that section II.A appears to establish the opposite result from that which EPA asserted in its proposed determination, namely that, at least in Maui, the contribution of organic carbon and elemental carbon pollution to visibility impairment is significant. According to the commenter, sugar cane burning in Maui is a principal contributor of these pollutants.
According to the commenter, readings from the HALE monitor, from which
A number of commenters (Earthjustice, NPS, Parsons) provided comments related to air quality monitoring for pollutants released by agricultural burning on Maui.
One commenter (Parsons) noted that there is only one monitoring station on Maui, located in North Kihei, and that it tests for only PM
One commenter (NPS) noted that there was considerable comment at the July 31, 2012 public hearing on the impact of cane burning on public health on Maui and visibility at Haleakala NP. The commenter stated that while there are days in the IMPROVE record at HALE with elevated organic and elemental carbon suggestive of biomass burning, the monitor location is not well suited for evaluating smoke impacts from cane burning. Accordingly, the commenter recommended that if EPA's objective is to characterize smoke incidence and potential health impacts from smoke, then a PM monitor sited closer to populated areas would be more useful than the HALE monitor.
Another commenter (Earthjustice) stated that EPA must provide the necessary monitors, particularly for PM
EPA disagrees with the commenter and finds that HACR is sufficient for monitoring visibility within the park. EPA has reviewed the monitoring data and the Hawaii DOH analysis of data collected at the HALE and HACR monitoring sites.
One commenter (Parsons) asserted that open field burning of sugar cane amounts to an issue of environmental justice. According to the commenter, the health and welfare of the community are deemed secondary, and are subjugated to claims of the plantation's economic viability if forced to harvest without burning.
One commenter stated that cane burning hurts Maui's economy and health. Another commenter asserted that emissions from cane burning (as well as HC&S smokestacks and fugitive dust from the sugarcane fields) threaten public health, visibility and enjoyment of Haleakala NP, and the health of the ocean environment and coral reefs.
Regarding environmental justice, as explained in our proposal, Executive Order 12898,
The commenter stated that most Maui residents and visitors to Haleakala NP consider the panorama from within Haleakala NP to areas outside of Haleakala NP (the view of the peaks of Mauna Kea and Mauna Loa on the Big Island, the views of Maui's central valley, the views of the West Maui Mountains, and the surrounding oceans) an integral vista within the intent of the federal definition.
One commenter (NPS) agreed with EPA's proposal to use the IMPROVE monitor at the Haleakala Crater (HACR) for future regional haze planning efforts because it more representative of the park's air quality and visibility than the HALE monitor, which is located at much lower elevation than much of the park area. The commenter has evaluated the IMPROVE data for both monitors for the period 2007 through 2010 and found the following: (a) sulfate concentrations are elevated on the same days at the two monitors, indicating that volcanic emissions from the Kilauea Volcano are impacting both monitors concurrently, although the concentrations are lower at the higher elevation (HACR) site; (b) in general, concentrations of nitrate, organic carbon, elemental carbon, and seasalt are lower at the higher elevation site; and (c) concentrations of soil and coarse matter at times are higher at the higher elevation site, suggesting possible international transport. The commenter is consulting with the IMPROVE network representatives to assure a representative data record for the regional haze process.
Another commenter (HC&S) also concurred with the conclusion that the HACR site is more representative of visibility conditions within the park and supported the proposal to base future regional haze planning efforts on data collected at the HACR site. This commenter stated that it was recognized as far back as 2005 that the HALE site was not appropriate for monitoring visibility at Haleakala NP since it is located well outside the park, is at a much lower elevation than a majority of the area of the park, and is impacted by emissions sources which are less likely to cause visibility impacts within the park.
However, a third commenter (Maui Tomorrow) stated that EPA's conclusion that the HACR monitoring data are more representative of visibility conditions within the Haleakala NP (citing TSD p. 74) is based on a misreading of studies from the Hawaii DOH. According to the commenter, the relevant Hawaii DOH study concludes only that, “The available data indicates that HACR IMPROVE monitoring data could
One commenter (FHNP) recommended that EPA use image-based techniques for monitoring, such as described by Graves and Neuman,
One commenter (Parsons) expressed understanding that the Regional Haze FIP for Hawaii considers only some of the overall factors and parameters of emissions into Maui's atmosphere. Nevertheless, the commenter urged EPA to broaden its determination of relevant impacts to Maui's air quality and regional haze to include the other common-sense environmental factors mentioned in his comments: (a) emissions from MECO's Kahului and Maalaea generating facilities, (b) emissions from HC&S's Puunene Mill, (c) HC&S's open field burning, and (d) fugitive dust.
One commenter argued that volcanic emissions are the cause of visibility impairment in Hawaii, but EPA will use it as a vehicle to put sanctions on carbon dioxide, smoke from sugarcane harvesting, and methane emitted by cattle at Haleakala Ranch even though these substances are emitted naturally from breathing, burning, and bovine flatulence. The commenter objected to the imposition of additional government control. The commenter stated that Hawaiians should tell EPA to take its “unattainable goals back to Washington and spare the Taxpayer expense.”
One commenter asked that EPA provide details regarding the notice requirements for the public hearings. The commenter believes that the public hearing was held too soon to give the public a proper opportunity to review the plan and the technical support documents. The commenter requested that EPA confirm that it had complied with the notice requirements.
EPA received written and oral comments on the proposal at the public hearings. Representatives of the following organizations provided oral or written comments: Maui Tomorrow Foundation (Maui Tomorrow), Alexander and Baldwin, parent company of Hawaii Commercial and Sugar (HC&S), the Ko Hawaii Pae Aina people, and Syntex Global (Syntex). Nineteen private citizens also provided oral or written comments at the public hearings. A summary of the major comments and EPA's responses are provided below.
The majority of the commenters at the hearing on Maui expressed concern that the proposed FIP does not require an end to the practice of agricultural burning in the sugar cane fields. These commenters generally indicated that they have witnessed thick smoke from cane burning that clearly impairs visibility, disrupting the scenic vistas on the island. For example, one commenter stated that during periods of cane burning, he cannot see Kihei from Haleakala NP or see the park from Kihei, and another similarly asserted that cane burning obscures the view from the top of Haleakala, especially over the valley. One commenter indicated that as many as three fires are lit in the morning, creating smoke plumes that fill the sky, and added that after the plumes of smoke dissipate, a brown film hangs in the air just under the inversion layer of the mountains. Seven of the commenters specifically objected to the proposed determination that no further controls on agricultural burning are reasonable at this time. One of these requested that EPA explore pollution controls to mitigate the impact of organic carbon from agricultural burning on visibility at Haleakala NP.
One of the commenters noted that EPA's analysis acknowledges that agricultural fire emissions occur over roughly 30,000 acres of cane fields, and added that this is among the largest anthropogenic sources of SO
Another commenter, citing a study by University of Hawaii meteorology Professor Andrews Daniels, stated that an average cane burning event releases approximately 200 to 600 tons of PM as compared to the estimated 700 tons of PM emitted each day in the Los Angeles basin. This commenter believes that PM should be considered in EPA's evaluation.
Many of the commenters at the Maui hearing expressed concern over the health effects that they believe result from PM and toxic pollutants released by cane burning on the island. Several
Some of these commenters recounted personal experiences with breathing problems or respiratory illness that they believe are attributable to smoke from cane burning. Other commenters expressed concern over the exposure that children are experiencing or the high incidence of asthma on the island. One commenter expressed dismay the sugar company is allowed to conduct cane burning simply to save money at, the commenter believes, the expense of public health.
Another commenter noted that cane burning was stopped in Florida because of its negative health effects. One commenter recommended that agricultural burning on Maui be suspended immediately so that its health and environmental impact can be studied. The commenter suggested that the burden should be placed on the growers to prove that the practice is not hurting the environment.
With respect to the visibility impacts of cane burning, there is no evidence that smoke from the burns is causing visibility impairment in the park. Without clear evidence that agricultural burning is impacting the Class I area, EPA does not consider it reasonable to impose additional controls as part of the Regional Haze plan.
Six commenters at the Maui hearing expressed the belief that a “stratospheric aerosol geoengineering” program that results in “chemtrails” that drift over Hawaii are responsible for some, or much, of the visibility impairment that is occurring. In the most extensive comments on this topic, one commenter stated that these effects are scientifically observable. The commenter indicated that he is able to observe the progress of these chemtrails through satellite images. He also stated that measurements from rainwater collected on the North Shore of Maui showed 30 to 200 parts per billion of aluminum and lesser amounts of barium and strontium, which according to the commenter are the chemical fingerprints of chemtrails. The commenter suggested a program of aerial sampling of the clouds drifting over Hawaii, and requested that EPA add aluminum, barium and strontium to the materials that it routinely monitors.
Another commenter similarly recommended that EPA broaden the scope of its analysis to include stratospheric aerosol spraying. The commenter believes that the waters of South Maui are impacted by such spraying, and that the spraying also causes health issues in people. The commenter also asserted that the spraying has introduced chemicals into the soils that are killing the plants in the area of Hana and Kipahulu.
EPA believes the current monitoring program is appropriate for Regional Haze. The IMPROVE program is a cooperative measurement effort governed by a steering committee composed of representatives from Federal and regional-state organizations. The IMPROVE monitoring program was established in 1985 to aid the creation of Federal and State implementation plans for the protection of visibility in Class I areas (156 national parks and wilderness areas) as stipulated in the 1977 amendments to the Clean Air Act.
The objectives of IMPROVE are:
(a) To establish current visibility and aerosol conditions in mandatory class I areas;
(b) To identify chemical species and emission sources responsible for existing man-made visibility impairment;
(c) To document long-term trends for assessing progress towards the national visibility goal;
(d) And with the enactment of the Regional Haze Rule, to provided regional haze monitoring representing all visibility-protected federal class I areas where practical.
Aluminum and strontium are measured as part of the IMPROVE program. The summary statistics for all data, including aluminum and strontium measurements, at individual monitoring sites are available at the VIEWS monitoring sites data statistics site
Six commenters objected to the plan's proposal to exempt six of the eight BART-eligible sources from BART review,
Without discussing the deciview screening level, another commenter similarly objected to the plan's proposal to exempt six of the eight identified BART eligible sources from further review under BART requirements. One commenter simply expressed opposition to exemptions and exceptions for some of Maui's major air polluters, and another objected to the exemptions made by EPA.
Eight commenters stated that the proposed control measures are not sufficient to ensure that reasonable progress is made during the first
Six commenters objected to the proposal to determine that the uniform rate of progress for the implementation plan to attain natural conditions is not reasonable. The commenters asserted that this rate of progress is reasonable and that the FIP should require additional control measures as necessary to meet this rate of progress.
One commenter (HC&S) stated that the methodology used to determine the proposed uniform rate of progress unnecessarily skews this value high. The commenter noted that EPA chose to exclude emissions from Kilauea Volcano when estimating natural visibility conditions while including these emissions in the estimate of baseline visibility conditions. As a result, the commenter asserted, the uniform rate of progress includes reductions in visibility impairment from anthropogenic sources that are sufficient to offset baseline emissions caused by the volcano. The commenter recommended that EPA consider adopting the methodology proposed by the Hawaii DOH to adjust the baseline visibility impairment to account for the impacts of the volcano as well as Asian dust. The commenter stated that if EPA were to use this adjustment in the calculation of the uniform rate of progress, the uniform rate of progress target for 2018 could essentially be achieved through the emissions reductions projected to occur by 2018 under the proposed FIP.
Seven commenters stated that since the HALE monitor's data were used for the baseline visibility assessment, that monitor must be kept in place or replaced with new monitors at that location so that long-term visibility data comparable to baseline may be captured. Another commenter objected to plans to reduce the current “measurements in place.”
Five commenters contended that the Hawaii DOH and EPA are choosing data from different monitors to conclude that organic carbon agricultural burning does not contribute to visibility degradation although, according to the commenters, Table 11 of the proposed FIP clearly indicates that it does. (Four of the commenters also cited Table III–1 of the TSD.) The commenters added that the Hawaii DOH and EPA should not be moving and placing monitors selectively. The commenters asserted that based upon the data, it is not acceptable to find that there is no evidence of agricultural burning contributing to haze.
One commenter stated that there is inadequate monitoring data backing up the proposal. The commenter indicated that emissions from cane burning, fugitive dust from agricultural operations, stack emissions from companies burning high-sulfur coal or emissions from bunker fuel are not monitored. The commenter believes that without such monitoring, there are no hard data to support the proposal, and no data on which to base public testimony.
One commenter stated that the surrogate approach of measuring different substances in the air does not directly address visibility. The commenter noted that a nephelometer can be used to measure visibility directly, and that nephelometers operated at two different frequencies can distinguish between smoke and water in the air.
Another commenter similarly indicated that if the monitor in its current location is unable to measure what one can easily see, the monitor is insufficient. The commenter believes that the monitor should be moved, additional monitors should be added or the monitor should be replaced by one that can collect better information. The commenter stated that the monitor does not account for Kipahulu, the area of the park at sea level in East Maui. The commenter indicated that HC&S has increased production since 2004, concluding that the data presented is not accurate. The commenter also stated that the 24-hour period of measurement does not adequately represent the 1 to 3 hour burning time.
EPA is not selectively using data to justify a particular policy outcome. Data from both HALE and HACR were considered when determining if there was any evidence that smoke from agricultural operations was impacting visibility at Haleakala NP. This is explained in more detail in our discussion on agricultural burning in Section II.A.11 of this notice.
The tables in the proposal and the TSD referenced by the commenters indicate possible smoke impacts at the HALE monitor. As we discussed previously, there is no evidence that this smoke is from agricultural burning. Nor is there any evidence that the smoke measured at HALE (which is outside the park and at a significantly lower elevation) is impacting the park itself,
EPA believes the current filter-based monitoring instrumentation, based on the IMPROVE Program, is the appropriate approach to determine the visibility levels at Hawaii's National Parks. The IMPROVE Program is discussed in greater detail in the response to Comment 3: Chemtrails, above. Visibility levels can be estimated from aerosol monitoring filters. Understanding the characteristics of the aerosols in a haze can also help identify the type of sources that contributed to the haze. It is possible to statistically estimate what portion of haze is caused by each aerosol type. This approach, known as an extinction budget analysis, can narrow the list of possible sources responsible for visibility impacts.
The commenter recommends that EPA set up two nephelometers in Kihei,
Regarding the concerns that a 24-hour average does not adequately capture the impacts from one to three-hour agricultural burns, the length of the burn is just one factor determining the percentage contribution to visibility impairment. A shorter burn, if it were impacting the monitor, could show up as a high percentage of visibility impairment if the source was heavily impacting the monitor for the duration of the burn.
Three commenters are concerned about the combustion of coal on Maui. One of the commenters asked EPA to consider that current permits allow over 100,000 tons of coal to be fired at the Puunene Mill each year. Another of the commenters submitted a photograph purportedly showing dark smoke being emitted from the mill's smokestacks. One commenter simply commented on the dense black smoke that comes from the mill's smokestack.
One commenter stated that the Puunene Mill's most recent permit application proposed increasing the amount of used motor oil combusted from 1.5 to 2 million gallons. The commenter asked that EPA consider the impacts that combustion of an additional 0.5 million gallons of used motor oil might have on haze-causing pollutant.
Four commenters objected to EPA's analysis discussed in the section titled “Point Source SO
EPA selected sources for a full reasonable progress review based on their total emissions of visibility-impairing pollutants and computer modeling of the impact of the sources' emissions on visibility at the Class I areas. The Puunene Mill is a much smaller source of visibility impairing pollutants than the Kahului Power Plant (See TSD Table VII–2.1). And, the BART modeling for the mill showed an impact that was much lower than the 0.5 dv threshold. While we understand and share the commenters' concerns about visible emissions from the plant, there is no evidence that these emissions are contributing significantly to visibility impairment in the park, therefore it was reasonable to omit it from the reasonable progress analysis.
Seven commenters disagreed with EPA statements in the TSD for the proposal that it is reasonable to assume that visibility at Haleakala on the best days is not getting worse and it is reasonable to assume that the visibility on the worst days will improve. Two of the commenters stated that in their experience in guiding tour groups through the Haleakala NP, visibility is not improving but is getting worse. Another commenter (Pearson) also asserted that the haze is not getting better on Maui.
One commenter stated that fugitive dust contributes significantly to the haze and poor air quality on Maui, yet large agricultural operations are exempted from best management practices. The commenter recommended that EPA consider this in the FIP. Another commenter also stated that fugitive dust from agriculture contributes to poor visibility in the park, and to health concerns.
Four other commenters requested that EPA review the possible impacts of fugitive dust from agricultural operations, especially from equipment operating on unpaved roads, on visibility in Haleakala NP. The commenters noted that agricultural operations are not required to mitigate dust emissions as is required of similar construction operations.
Another commenter also expressed concern about how HC&S clears and plows its fields. The commenter stated that this commonly creates huge clouds of dust hundreds of feet in the air going across the Mokelele Highway and past the harbor. The commenter asserted that the reefs are devoid of fish and the coral is dying. The commenter questioned why HC&S does not use water trucks to mitigate dust emissions and asked who establishes rules for the amount of pollution that HC&S can emit.
One commenter stated that EPA's model is inadequate because it does not agree with his observation. The commenter noted that he has observed that the visibility between Kihei and the park is diminished when cane is being burned and concluded that if the model does not match that observation, the model is wrong and should be discarded. Another commenter indicated that she would challenge the models and assumptions being used for the analysis.
One commenter representing the HC&S and its parent company, Alexander & Baldwin, concurred that it is reasonable for EPA to use the highest emitting day between 2003 and 2007 for BART modeling of emissions from the Puunene Mill. However, the commenter pointed out that the typical visibility impacts from the facility are lower, no more than 20 percent of the selected threshold for BART review and reasonable progress prioritization. On this basis, the commenter supported the proposed determination that additional controls on the mill are not warranted.
EPA understands that typical emissions can be lower than the maximum emissions used in the BART modeling. We affirm the determination that the mill should not be subject to BART.
One commenter stated that the Hawaii Clean Energy Initiative
With respect to reductions in emissions from automobiles, we note that the RHR provides that states “may not adopt a reasonable progress goal that represents less visibility improvement than is expected to result from implementation of other requirements of the CAA during the applicable planning period.”
Two commenters objected to EPA's conclusion that it is unreasonable to require additional controls on NO
One commenter objected to the proposal to determine that it is not reasonable to require additional SO
One commenter objected to the finding of no integral vista at Haleakala NP. The commenter asserted that the panoramic view from within the park to areas outside the park, including Volcanoes NP on the Big Island and the view of central Maui and the surrounding oceans, is an integral vista within the meaning of the Federal regulations. The commenter added that his experience with guiding visitors at the Haleakala NP illustrates the importance of the panoramic view from within the park to areas outside to the overall visitors' experience at the park.
One commenter representing the HC&S and its parent company, Alexander & Baldwin, stated that the company generally concurs with the conclusions and recommendations of the proposal. The commenter commended EPA and the Hawaii DOH for the thorough review and analysis of available data.
One commenter, stating that she represented the Kanaka Maoli people, objected to the FIP based on the supposition of jurisdiction. The commenter believes that it is unreasonable because it will afford a great opportunity to increase the reach into sacred burial sites and the sacred places of the Kanaka Maoli people. The commenter indicated that the plan does not address this issue and does not give any respect to the Kanaka Maoli people.
One commenter indicated that, in addition to air contaminants from cane burning, coal combustion and geoengineering, aerial applications of fertilizer and pesticides contribute to the air quality problem. The commenter noted that he has seen white deposits from this practice many times and, within the last 8 months, aerial spraying by HC&S in Paia drifted over a public beach with children. The commenter believes that such things should be controlled and penalties should be imposed. The commenter noted that tourism suffers over these issues.
One commenter suggested that EPA evaluate four emissions sources more fully: military actions, ship emissions, biofuel plants and geothermal plants. The commenter provided a written copy of her comments, which includes documentation for many of her points about military actions and ship emissions from sources such as environmental impact statements (EIS) and news reports.
The commenter stated that increased military actions are underway, and more are planned for Pohakuloa as the United States shifts forces to the Pacific. The commenter asserted that these activities will generate dust from construction, vehicles and troop movements, erosion, and possible fires that consume vegetation. The commenter believes that air quality problems may not be detected because Pohakuloa has no air-monitoring stations in the south and southwest, which is the most likely place to detect any problems since the prevailing winds come from the northeast. The commenter stated that when training was done at Makua, fires consumed thousands of acres, and inadequate fire prevention has been an ongoing problem with that training.
The commenter indicated that a second major action is the Stryker armored vehicle training, which is already taking place. According to the commenter, the EIS for this program indicates that there will be significant disturbance to soils and vegetation due to intensified on- and off-road maneuver training, leading to increased soil erosion that cannot be mitigated to less than significant, and PM
Regarding ship emissions, the commenter is concerned that the shipping industry is trying to delay the August 1 implementation date of the North American Emission Control Area
The commenter stated that some of the claims made by biofuels plants regarding their air and water emissions seem unfounded. The commenter added that emissions from all actions related to a biofuels plant need to be evaluated, not just emissions generated by burning biofuel: clearing land; transporting seed and fertilizer; planting, cultivating and harvesting trees or whatever is to be burned; transporting the biofuel to the plant; and preparing the fuel for burning. The commenter further noted that after burning the fuel, there is waste that must be disposed. The commenter stated that the Aina Koa Pono plant may get revived, so there may be more impacts than just from the Ho Honua plant.
The commenter indicated that geothermal technology is being pushed heavily, but there is extensive documentation of possible leaks that are not being detected. The commenter stated that nearby residents have reported unusual odors; corrosion of roofs, gutters and catchment tanks that has caused high levels of lead in drinking water; and health problems. The commenter contended that there have been unplanned releases, information pertaining to several of which are listed in her written comments.
The commenter requested that EPA look into the emissions from the Puna Geothermal Venture (PGV) plant. She noted that although the facility claims there are no leaks, the facility must replace the pentane used in the heat exchanger, and the commenter questioned why that is necessary if there are no leaks. The commenter also stated that PGV operates hydrogen sulfide monitors at the plant, but they are at a height of 6 feet while hydrogen sulfide is heavier than air and travels at ground level.
Regarding emissions reductions from the ECA, since these requirements are part of an international treaty, neither the State of Hawaii nor the EPA has the authority to delay implementation or grant waivers from the requirements. In the unlikely event that the treaty could be changed in the future to allow for higher emissions, the State of Hawaii would have to indentify equivalent emissions reductions from other sources in order to meet the requirements of this FIP.
EPA supports the implementation of shore power to reduce emissions from vessels while in port. However, EPA does not believe that it is necessary to require the use of shore power in order to show reasonable progress for the regional haze program.
EPA understands the commenter's concern about emissions from geothermal plants, but there is no evidence that these emissions are contributing to visibility impairment. As a result, we affirm that there will be no pollution control requirements on geothermal plants as part of this action.
Regarding biomass plants, this issue was addressed in Section II.A.5 regarding the Hu Honua and Tradewinds facilities. This discussion included a description of how future facilities will be addressed as part of the Regional Haze planning process. The concerns about land clearing operations are noted and EPA recommends that they be considered in the next plan as part of the analysis of the sources of coarse mass and soil impacting Volcanoes NP.
One commenter who lives in Wainaku stated that early nearly every morning he has witnessed a blanket covering Hilo that dissipates when the sun rises and warms the mountain. The commenter believes that this blanket is composed of night emissions from the Hilo area power plants or other industrial activities. The commenter has documented on film these three power plants emitting black soot and smoke into the air. The commenter wonders whether these emissions are the cause of the morning blanket that he has witnessed, and whether these stack emissions are being registered by the State or EPA.
The commenter suggested that these three power plants should be retrofitted with monitors to track whether they are in compliance with their permits. The commenter noted that the plants only have to perform an emissions stack test once in a while. The commenter noted that most of the pollution that is visible is happening at night when it does not affect visibility in the parks. The commenter pointed out that the three power plants are within 5 miles of a population of 40,000 which is growing rapidly. The commenter indicated that for health-related concerns, it would be helpful to know the 24-hour cycle of emissions from the plants.
The commenter noted that the Ho Honua plant was excluded from EPA's review because of its conversion to biofuels, but indicated that there is a legal issue surrounding the claims made by the plant regarding its emissions and how they are dispersed by the wind. The commenter stated that the biofuel to be combusted at the Ho Honua plant is not necessarily a clean biofuel. The commenter recommended that EPA monitor emissions from the facility.
The commenter also noted that Wheelabrator has proposed a waste-to-energy plant in Hilo. The commenter asked whether that would be a factor in air quality in the park. Finally, the commenter suggested an anti-idling rule such as the commenter believes has been passed in California for county vehicles. The commenter noted that he frequently sees trucks, bulldozers and pickup trucks idling by the side of the road. The commenter believes that such a program would be easy to implement, would save the taxpayers' money and would reduce emissions.
EPA appreciates the comment regarding the biofuel and waste-to-
EPA is very supportive of strategies to reduce idling vehicles. However, given the significant reductions from mobile sources in the first planning period due to existing regulations, EPA affirms that we are not requiring additional emissions reductions from this source category as part of this rulemaking.
One commenter stated that he has experienced worsening pollution on the Big Island over his lifetime, and no Federal, state or county government agency has done anything to prevent it. The commenter expressed concern that pollution is only an issue at this time as it relates to visibility in the Hawaii Volcanoes NP, and asked whether EPA is aware that people live on the island.
The commenter stated that EPA has indicated the HELCO would not have problems complying with EPA requirements and questioned whether this meeting is a show for the public. The commenter asked how the emissions from HELCO facilities are calculated, whether on a yearly basis without considering how many days or hours the plants were in operation, or how much pollution enters the atmosphere in 1 hour of operation.
The commenter stated that the electricity rate charged to consumers by HELCO is based on the cost of foreign import oil, but any oil price reductions are not passed on to consumers. The commenter asserted that all HELCO costs are passed on to the consumers with the approval of the Hawaii PUC with no input from the public. The commenter contended that one primary objective of the PUC is to ensure that HELCO gains a profit, and characterized this situation as a dictatorial condition approved by the state legislature and PUC, and now endorsed by EPA. The commenter does not support what he alleged are dictatorial procedures presented by the state—Federal, state, PUC and HELCO.
The commenter added that the smoke that an earlier commenter has seen at night is the result of a blow-back cleaning system that is used to clean the filters for the turbine engines at the HELCO plant on Railroad Avenue.
The methodology for calculating emissions was addressed in the previous comment.
One commenter representing Xtreme Fuel Treatment manufacturer, Syntek Global, stated that the company's product reduces the burn rate of fuel, so that fuel burns more efficiently and less fuel is burned. The commenter contended that while the analysis looked just at power plants, a lot of the problems come from emissions from cars. The commenter suggested that EPA and the State of Hawaii conduct a test of the company's product with a generator or state or county transport system to see how emissions could be reduced.
EPA is finalizing a Regional Haze FIP for the State of Hawaii. The FIP establishes an emissions cap of 3,550 tons of SO
This action finalizes a FIP that will limit emissions of SO
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR Part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies
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 this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The three sources in question are electric generating plants that are owned by the Hawaii Electric Light Company, Inc. (HELCO), which is an electric utility subsidiary of HECO. Pursuant to 13 CFR 121.201, footnote 1, an electric utility firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours (MWH). In the fiscal year ended December 31, 2011, HELCO generated or purchased a total of 1,186.6 MWH.
The Hawaii Regional Haze FIP will limit emissions of SO
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
The Hawaii Regional Haze FIP does not have federalism implications. This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. In this action, EPA is fulfilling its statutory duty under CAA Section 110(c) to promulgate a Regional Haze FIP following its finding that Hawaii had failed to submit a regional haze SIP. Thus, Executive Order 13132 does not apply to this action.
The Hawaii Regional Haze FIP will limit emissions of SO
EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. However, to the extent this rule will limit emissions of SO
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We have determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The Hawaii Regional Haze FIP will limit emissions of SO
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this action is a rule of particular applicability. This rule finalizes a FIP that applies to three specific sources.
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and record keeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(d)
(2)
(3)
(4)
(5)
(i) All records, including support information, required by paragraph (d)(5) of this section shall be maintained for at least five (5) years from the date of the measurement, test or report. These records shall be in a permanent form suitable for inspection and made available to EPA, the Hawaii Department of Health or their representatives upon request.
(ii) The owners and operators of the EGUs identified in paragraph (d)(1) of this section shall maintain records of fuel deliveries identifying the delivery dates and the type and amount of fuel received. The fuel to be fired in the boilers shall be sampled and tested in accordance with the most current American Society for Testing and Materials (ASTM) methods.
(iii) The owners and operators of the EGUs identified in paragraph (d)(1) of this section shall analyze a representative sample of each batch of fuel received for its sulfur content and heat value following ASTM D4057. The samples shall be analyzed for the total sulfur content of the fuel using ASTM D129, or alternatively D1266, D1552, D2622, D4294, or D5453.
(iv) The owners and operators of the EGUs identified in paragraph (d)(1) of this section shall calculate on a monthly basis the SO
(v) The owners and operators of the EGUs identified in paragraph (d)(1) of this section shall calculate on a monthly basis the total emissions for all units for the preceding twelve (12) months.
(vi) The owners and operators of the EGUs identified in paragraph (d)(1) of this section shall notify the Hawaii Department of Health and EPA Region 9 of any exceedance of the emission cap in paragraph (d)(3) of this section within thirty (30) days of such exceedance.
(vii) By March 1, 2019 and within sixty (60) days following the end of each calendar year thereafter, the owners and operators of the EGUs identified in paragraph (d)(1) of this section shall report to the Hawaii Department of Health and EPA Region 9 the total tons of SO
(viii) Any document (including reports) required to be submitted by this rule shall be certified as being true, accurate, and complete by a responsible official and shall be mailed to the following addresses: Clean Air Branch, Environmental Management Division, State of Hawaii Department of Health, P.O. Box 3378, Honolulu, HI 96801–3378 and Director of Enforcement Division, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105.